9:30 AM
Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Docket 22
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
12/12/2019 5:07:22 PM Page 1 of 1
10:00 AM
CU MEMBERS MORTGAGE
vs DEBTOR
Docket 52
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Fredrick Visser Represented By William G Cort
Movant(s):
CU Members Mortgage, a division Represented By
James F Lewin Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK N.A.
vs DEBTOR
Docket 30
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tommy Hurtado Represented By Kevin Tang
Movant(s):
Wells Fargo Bank N.A., et al Represented By Anna Landa
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FREEDOM MORTGAGE CORPORATION
vs DEBTOR
Docket 32
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Florenzia Vineyard Represented By Andy C Warshaw
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOS ANGELES FEDERAL CREDIT UNION
vs DEBTOR .
Docket 27
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Raul Antonio Melendez Represented By Julie J Villalobos
Movant(s):
Los Angeles Federal Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MECHANICS BANK
vs DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Edwin Rolando Samayoa Represented By Steven A Alpert
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOS ANGELES COUNTY FIRE DEPARTMENT
vs DEBTOR
Docket 458
- NONE LISTED -
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Los Angeles County Fire Dept. Represented By Jacquelyn H Choi
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
La Tanya R. Taylor Represented By Sundee M Teeple
Movant(s):
La Tanya R. Taylor Represented By Sundee M Teeple Sundee M Teeple Sundee M Teeple Sundee M Teeple
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 21
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Movant(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 16
Appearances are not required. Debtor's counsel is cautioned that the deadline for oppositions is not the seven days stated in the motion (dkt.16). Rather, it is five days as stated in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). See Order (dkt.13) (referencing such procedures). Nevertheless, the tentative ruling is to grant Debtor's motion as set forth below; provided that if any creditor were to assert in future that it had been misled into thinking that it missed the opposition deadline, that might be a basis for reconsideration of any relief granted to Debtor. Counsel is cautioned in future not to state incorrect opposition deadlines.
The tentative ruling on the motion is to grant it, subject to the following conditions.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
10:00 AM
stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeannette M. Sullivan Represented By Michael E Plotkin
Movant(s):
Jeannette M. Sullivan Represented By Michael E Plotkin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 14
Appearances are not required. Debtor's counsel is cautioned that the deadline for oppositions is not the seven days stated in the motion (dkt. 14, 18, 20). Rather, it is five days as stated in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). Nevertheless, the tentative ruling is to grant Debtor's motion as set forth below; provided that if any creditor were to assert in future that it had been misled into thinking that it missed the opposition deadline, that might be a basis for reconsideration of any relief granted to Debtor. Counsel is cautioned in future not to state incorrect opposition deadlines.
The tentative ruling on the motion is to grant it, subject to the following conditions.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
10:00 AM
stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Henry Lee Monday Jr. Represented By A Mina Tran
Movant(s):
Henry Lee Monday Jr. Represented By A Mina Tran
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion in Individual Case for Order Confirming Termination of Stay or That No Stay is in Effect
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In addition and in the alternative, grant the motion under 11 U.S.C.
362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-11151-NB) was dismissed (on 4/22/19) within one year before this case was filed (on 2/4/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730- NB, Dkt 40.
In addition and in the alternative, grant the motion under 11 U.S.C. 362(c)(4). Debtor actually had not one but two bankruptcy cases that were dismissed within the year before this latest bankruptcy case was filed: Case No. 2:18-bk-21271-VZ, dismissed 10/15/18, and Case No. 2:19-bk-11151- NB, dismissed 4/22/19.
Section 362(c)(4) provides in relevant part
(A)(i) ... if 2 or more single or join cases of the debtor were pending within the previous year but were dismissed, other than a case refiled under a chapter other than chapter 7 after
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dismissal under section 707(b), the stay under subsection (a) shall not go into effect upon the filing of the later case ... [11
U.S.C. 362(c)(4)(A)(i) (emphasis added)]
Rule 9006(a)(1)(A) (Fed. R. Bankr. P.) provides that when computing
time periods where the period stated is in days or a longer unit of time, the day of the event that triggers the period is to be excluded. Here, the Section 362(c)(4) time period is stated in years. Pursuant to Rule 9006(a)(1)(A), the petition date, 10/15/19, is to be excluded. Therefore, the instant bankruptcy peititon was filed 364 days after Debtor's first prior bankruptcy case was dismissed. Therefore, after considering Debtor's next bankruptcy case that was dismissed on 4/22/19, Debtor had two dismissed bankruptcy cases that were pending within one year previous to the petition date.
Because Debtor did not seek or obtain any order imposing the automatic stay, Debtor's instant bankruptcy case falls within Section 362(c) (4). This is an alternative reason why there is no automatic stay in effect.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finis Lawrence Adams Represented By
Leroy Bishop Austin
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF AMERICA, NA
vs DEBTOR
Docket 38
Tentative Ruling for 1/14/20 (same as for 12/17/19):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Loretta Donner Represented By Stephen S Smyth William J Smyth
Movant(s):
Bank of America, N.A. Represented By Merdaud Jafarnia
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 39
Debtor(s):
Courtney Anne Rogers Represented By Barry E Borowitz
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 45
Debtor(s):
Martha Milagros Noy-Taylor Represented By
Hale Andrew Antico
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK NATIONAL ASSOCIATION
vs DEBTOR
Docket 33
Debtor(s):
Deborah Anne Fostrey Represented By Thomas B Ure
Movant(s):
US Bank National Association, as Represented By
Erica T Loftis Pacheco Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 41
Tentative Ruling for 1/14/20 (same as for 12/10/19):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 43).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Richard Simmons Represented By
D Justin Harelik
Movant(s):
Lakeview Loan Servicing, LLC by Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
JESUS QUINTERO
vs DEBTOR
Docket 48
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Jesus Quintero Represented By Jennifer L Rusnak
11:00 AM
Application for Fees and Expenses
[Filed by Rosendo Gonzalez, Ch. 7 Trustee]
Docket 54
Approve the Trustee's final report and allow the Trustee $3,950 in fees, and
$108.02 in expenses, for a total of $4,058.02. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco B Rodriquez Represented By Renee Nasiri
Joint Debtor(s):
Yolanda Villafana Represented By Renee Nasiri
Trustee(s):
Rosendo Gonzalez (TR) Represented By Carmela Pagay
11:00 AM
Attorneys for Chapter 7 Trustee]
Docket 51
Allow Levene Neale Bender Yoo & Brill LLP $9,821.50 in fees and $219.35 in expenses, for a total of $10,040.85. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco B Rodriquez Represented By Renee Nasiri
Joint Debtor(s):
Yolanda Villafana Represented By Renee Nasiri
Movant(s):
Rosendo Gonzalez (TR) Represented By Carmela Pagay
11:00 AM
Trustee(s):
Rosendo Gonzalez (TR) Represented By Carmela Pagay
11:00 AM
Docket 53
Allow Karl T. Anderson, CPA Inc. $3,530 in fees and $524.86 in expenses, for a total of $4,054.86. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco B Rodriquez Represented By Renee Nasiri
Joint Debtor(s):
Yolanda Villafana Represented By Renee Nasiri
Movant(s):
Karl T Anderson (TR) Pro Se
11:00 AM
Trustee(s):
Rosendo Gonzalez (TR) Represented By Carmela Pagay
11:00 AM
Docket 7
Debtor(s):
Paul Albert Satterlee Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Adv#: 2:19-01156 Gonzalez v. Karen et al
fr. 7/30/19, 9/24/19, 10/29/19, 12/10/19, 12/17/19
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David M. Karen Represented By Keith S Dobbins
DK Law Group, LLP Represented By Keith S Dobbins
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Cash collateral motion (dkt.31&32)
Grant in part and deny in part on an interim basis, as set forth in calendar no. 2, 1/14/20 at 1:00 p.m.
Status report
At the hearing on 12/17/19 this Court orally directed Debtor's counsel to file a status report no later than 12/31/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Amended November Monthly Operating Report ("MOR," dkt. 43)
State court suit
The MOR reflects a $5,000 payment to James A. Judge, Esq. related to a civil law suit. Dkt. 43, p.9. Debtor also states that "a civil law suite against Aztec Financial (Secured Creditor) is pending." Id. at p.30.
The docket does not reflect any application to employ Mr. Judge as special counsel. In addition, there is no disclosure whether this payment was on account of prepetition or postpetition fees/costs/other charges. Should this Court issue an order directing Mr. Judge to show cause why he should not disgorge that payment and/or why he, Debtor, and/or Debtor's bankruptcy counsel should not have a remedy imposed for expending assets of this bankruptcy estate in violation of the Bankruptcy Code?
Car insurance
The MOR reflects that Debtor's car insurance is due to expire on 12/31/19. Id. at p.26. Has Debtor obtained replacement insurance?
1:00 PM
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., brief status report due 2/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Cash collateral motion (dkt.31-33)
Debtor has self-calendared this motion for 1/14/20 at 1:00 p.m. That is over a month after the petition date.
What is Debtor doing with the cash meanwhile? There may be no good answer: either Debtor is using the cash, in violation of 11 U.S.C. 363(c), or Debtor is not using the cash to pay essential expenses, in violation of Debtor's duties to manage the estate and pay utility bills and other ordinary and necessary expenses in a timely manner (see 11 U.S.C. 1107-08 and 28
U.S.C. 959(b).
Why did Debtor not use the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) to have this matter heard on 14 days' notice, or alternatively apply for an order shortening time if the matter needed to be heard before that 14 day period?
Deadlines/dates. This case was filed on 11/11/19.
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Bar date: 3/16/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/14/20 at 1:00 p.m., brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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Docket 31
Deny in part and grant in part Debtor's motion for use of cash collateral (the "Cash Collateral Motion," dkt. 31) on an interim basis, subject to the conditions set forth below, with a continued, final hearing on 2/18/20 at 1:00 p.m., and a deadline of 1/17/20 for Debtor to file and serve a notice of the final hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Preliminary Issues
(1) Disputed liens
Debtor disputes claim(s) allegedly secured by two properties: (1) 45 East 69th Way, Long Beach, CA 90805 ("69th Way") and (2) 11 Shadow Lane, Rolling Hills, CA 90272 ("Shadow Lane"). Debtor does not dispute a claim secured by a third property: (3) 49 East 68th Way, Long Beach, CA 90805 ("68th Way"). See dkt. 31, p.11, para. 8.
Debtor asserts the 69th Way and Shadow Lane properties are "encumbered by a loan which he did not take out but was fraudulently done by a realtor Frank Hernandez whose license has been suspended." Dkt.30 at PDF p.3. Debtor declares, "I will segregate all excess funds in the Debtor in Possession account while a resolution on those claims [is being obtained]." Dkt. 31, p.11, para. 8. This Court has several concerns.
First, Debtor has not provided proof that the Cash Collateral Motion was served properly on the holder(s) of the lien on those two properties, in full compliance with Rule 7004 (Fed. R. Bankr. P.) (made applicable by Rule 9014(b)). See dkt.31 (last page), dkt.32 (last 4 pages). Specifically, Debtor has not served them "Attn: Officer or Managing/General Director" or the like
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(see Rule 7004(b)(3) and see also Rule 7004(h)), nor is it clear that Debtor has used addresses where the Officers or other requisite persons are situated (to the contrary, at least one address appears likely to be a PO Box for payments, and this Court takes judicial notice that payment addresses often are different from addresses for service of process).
Second, Debtor has not obtained any declaratory judgment clearing title of the allegedly fraudulent liens, or any other judgment or order that would permit Debtor to ignore the record title showing an interest in cash collateral. Therefore, the disputed liens must be provided with some form of adequate protection. See 11 U.S.C. 105(a), 361, 363(e).
Third, as noted above, Debtor declares, "I will segregate all excess funds in the Debtor in Possession account while a resolution on those claims [is being obtained]." Dkt. 31, p.11, para. 8 (emphasis added). That is insufficient. Commingling funds in the DIP account does not adequately protect the asserted liens. Debtor must establish a separate account to hold all funds in excess of the dollar amounts necessary for insurance, real estate taxes, and any other expenses approved by this Court. Debtor is directed to address at the hearing whether a separate DIP bank account has been established for each property, and if that account is sufficient to segregate cash collateral.
Fourth, although Debtor has checked the box in the Cash Collateral Motion (dkt.31, p.3, section 6) stating that a memorandum of points and authorities is attached if Debtor proposes not to make adequate protection payments, that is false: no such memorandum is attached.
Fifth, the tentative ruling is that an additional condition to establish adequate protection is that Debtor must act diligently in bringing whatever challenges Debtor might have to the asserted liens.
For all of the foregoing reasons, the tentative ruling is that (a) Debtor must segregate all excess funds as set forth above, (b) Debtor must re-serve the motion papers in compliance with Rule 7004 no later than 1/16/20, and (c) Debtor must address at the continued hearing what steps Debtor has taken to address the allegedly fraudulent nature of the liens.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
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F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
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In the event that the motion or related papers seek authority to grant
postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2
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(e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
Movant(s):
Candelario Lora Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 1/14/20:
Continue this status conference as set forth below, based on this Court's review of Debtors' status report (dkt.60), the monthly operating reports, and the other matters on the docket and in this Court's records. Appearances are not required on 1/14/20.
Current issues N/A
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (order, dkt. 25, timely served, dkt. 28).
Procedures order: dkt. 8 (timely served, dkt. 22)
Plan/Disclosure Statement*: file by 1/13/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/10/20 at 1:00 p.m. Brief status report due 2/25/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
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Continue this status conference as set forth below. Appearances are not required on 11/12/19.
Current issues N/A
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (order, dkt. 25, timely served, dkt.28).
Procedures order: dkt. 8 (timely served, dkt. 22)
Plan/Disclosure Statement*: file by 1/13/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/14/20 at 1:00 p.m. Brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues n/a
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: file by 1/13/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a
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later time).
Continued status conference: 11/12/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
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Docket 1
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
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Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's
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opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77,
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80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to
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address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
Termination of prior real estate agent
Debtor reports (dkt. 69, para.3) that the previously authorized real estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent
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[that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties") that may be part of a real estate transaction for the sale of the Real Property [i.e., dual agency? that is prohibited by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
What does the quoted text mean? This Court's questions are set forth in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 65
Tentative Ruling for 1/14/20:
Please see the tentative ruling in the status conference (cal. no. 4, 1/14/20 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling in the status conference (cal. no. 19, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/29/19:
Please see the tentative ruling in the status conference (cal. no. 10, 10/29/19 at 1:00 p.m.).
Tentative Ruling for 10/15/19:
Please see the tentative ruling in the status conference (cal. no. 3, 10/15/19 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
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fr. 12/10/19
Docket 125
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
Ashley Susan Aarons Represented By Michael R Totaro Michael R Totaro
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Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19
Docket 1
Tentative Ruling for 1/14/20:
Continue this status conference as set forth below. This Court has reviewed the Plaintiff's status report (adv. dkt. 28), and has no issues that would require a status conference at this time. Appearances are not required on 1/14/20.
Current issues
(a) Order on Debtor/Defendant's Motion To Set Asie Entry Of Default (adv. dkt. 19)
At the 12/17/19 hearing, this Court denied Debtor's motion. While the docket reflects a notice of lodgement related to the motion (adv. dkt. 27), no order has actually been lodged.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after this hearing date, and attach a copy of this Court's 12/17/19 tentative ruling, thereby incorporating it as this Court's final ruling, for the reasons stated therein and at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A
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Dispositive motions to be heard no later than: N/A Joint Status Report: 2/11/20
Continued status conference: 2/18/20 Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Debtor/Defendant's motion to set aside entry of default (adv. dkt. 19), Plaintiff's opposition (adv. dkt. 25), and Debtor/Defendant's reply (adv. dkt. 26)
Deny without prejudice for the reasons set forth below.
The 9th Circuit employs a three-part test to determine whether or not "good cause" exists to set aside entry of default under Rule 55(c) (Fed. R. Civ. P.), made applicable in adversary proceedings by Rule 7055 (Fed. R. Bankr. P.). The three factors are:
whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice the other party. [United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d
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1085, 1091 (9th Cir. 2010) (internal quotation and citation omitted).]
This standard is disjunctive, such that a finding that any one of the
above factors is true is sufficient reason to refuse to set aside the default. Id.
Whether Debtor engaged in culpable conduct that led to the
default
Debtor provides three explanations for why she was not culpable - (1) her prior counsel withdrew on 8/6/19, shortly before her answer was due (on 8/14/19), and prior counsel never filed an answer, (2) a series of exigent personal matters, and (3) that she is not an attorney and is unfamiliar with the details and formalities of litigation deadlines. Adv. dkt. 19, p.4:11-14 and p.4:21-27.
Debtor did not file the instant motion (11/17/19) until almost three months after default was entered against her (8/20/19, adv. dkt. 9). See adv. dkt. 25, p.5:13-16. Debtor has not explained why the above three explanations excuse a three month delay in filing the motion. Was Debtor interviewing lawyers during that time? Debtor also does not provide any specific dates of her exigent personal matters that demonstrate there was a direct relationship between those events and Debtor's mental state at the time the answer was due. See adv. dkt. 25, p.6:10-12. For example, did Debtor visit a doctor or other professionals to address those exigent personal circumstances? While Debtor might not be an attorney familiar with litigation deadlines, immediately after default was entered she enlisted her state court attorney to assist in having the default set aside. Adv. dkt. 19, p.3:25-p.4:1.
Was Debtor similarly aware of the answer deadline?
The tentative ruling is that Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, which is sufficient grounds for denying her motion.
Whether Debtor has meritorious defenses to the causes of action in the adversary proceeding
Debtor's motion explains that Debtor has meritorious defenses to the causes of action in the underlying state court action. Adv. dkt. 19, p.6:13-7:8. Plaintiff's opposition explains that Debtor's motion does not address defenses to Plaintiff's objections to dischargeability, which are the matters at issue in this adversary proceeding. Adv. dkt. 25, p.6:23-25. Debtor's reply states that because the state court actions have not been finally adjudicated, there is no debt owed to Plaintiff by Debtor that the court can make a determination on
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regarding dischargeability. Adv. dkt. 26, p.4:7-10.
Debtor is incorrect as to Debtor not owing Plaintiff a debt. Plaintiff's complaint explains that Plaintiff's fees and costs award was affirmed on appeal and the abstract of judgment was recorded on 7/19/18. Adv. dkt. 1, p.11, paras. 33-34. Plaintiff's complaint further alleges that Debtor's action to allegedly prevent collection of the judgment is grounds for denying Debtor her discharge under 11 U.S.C. 727. Id. at p.12, para. 44. Debtor's motion does not provide any meritorious defenses to this cause of action. Moreover, in order to defeat Plaintiff's cause of action on this issue, Debtor would need to meet the burden of proof for a motion for reconsideration. It appears Debtor would have a very difficult time meeting this standard, especially in light of Debtor's admission that the lien which eats up all the equity in Debtor's property that might otherwise be used to pay the judgment is a sham. See dkt. 142, p.3:1-3; adv. dkt. 25, p.7:26-p.8:1.
The tentative ruling is that Debtor has not provided any meritorious defenses to that portion of the adversary proceeding, which is a sufficient ground to deny her motion as currently presented. The tentative ruling is that it is premature to address whether Debtor has meritorious defenses with respect to the remainder of the adversary proceeding, because that may be mooted by the issue- or claim-preclusive effect of the actions that are proceeding in nonbankruptcy court.
Whether reopening the default judgment will prejudice
Plaintiff
Debtor aruges that Plaintiff will not be prejudiced is this Court grants her requested relief because moving forward on the merits after "only a short delay" should not prejudice Plaintiff's ability to litigate her case. Adv. dkt. 19, p.7:10-22. Plaintiff says that she will be prejudiced because the history of Debtor's bankruptcy case evidences a patter of fraudulent actions by Debtor to hinder Plaintiff's prosecution of the state court cases. Adv. dkt. 25,
p.7:25-26.
While this Court agrees with Plaintiff that there appears to have been fraud re the $5 million recorded lien on Debtor's property, Plaintiff has not explained the basis for her assertion that now that Debtor is in bankruptcy the same sort of fraudulent behavior is likely to occur.
The tentative ruling is that granting Debtor's motion will not prejudice Plaintiff.
Conclusion
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The tentative ruling is that while granting Debtor's motion may not
prejudice Plaintiff, Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, and she has not explained what her meritorious defenses to the causes of action in this adversary proceeding are, so this Court is denying Debtor's motion without prejudice.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/31/19 Continued status conference: 1/14/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Continue this status conference as set forth below. This Court has reviewed Plaintiff's latest status report (adv. dkt. 15) and is not aware of any issues that warrant a status conference at this time. Appearances are not required on 11/12/19.
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 12/17/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed Plaintiff's unilateral status report (adv. dkt. 11) and the other filed documents and records in this adversary proceeding.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
Preliminary matters: continuance
Plaintiff's Status Report notes (a) that a Clerk's Default was entered in this case on 8/20/19 (adv. dkt. 9) and (b) that she will either seek relief from the automatic stay to proceed with defamation actions in nonbankruptcy court and/or seek a default judgment in this adversary proceeding. The tentative ruling is to continue this Status Conference as set forth below, at which time this Court can assess what progress has been made on those issues. Note: In addition, this Court will hold a Status Conference concurrent with any other hearing in this adversary proceeding (including any self-calendared hearings).
Standard matters
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
Plaintiff is directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the
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Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 11/12/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19
Docket 1
Tentative Ruling for 1/14/20:
Appearances required.
Current issues
Debtor's sale motion, 175 Cabrillo Street, Costa Mesa, California (the "Sale Motion," dkt. 464-468), and Cathay Bank's statement of position (dkt. 478)
The tentative ruling is (i) to grant the Sale Motion, subject to any overbids at the hearing, and subject to Cathay Bank's reservation of rights (dkt.478, n.1, incorporating dkt.403), and (ii) find that proposed purchaser Fred Howser is a good faith purchaser under 11 U.S.C. 363(m). In the event that someone other than the proposed purchaser is the winning bidder at the auction, they will need to file a good faith declaration before any order is lodged that includes any good faith finding. See the posted Procedures of Judge Bason regarding good faith declarations.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date.
Los Angeles County Fire Department ("LA Fire"): motion for relief from automatic stay (the "R/S Motion," dkt. 458-459), Debtor's opposition (dkt. 479), and LA Fire's reply (dkt. 485)
Deny without prejudice, for the reasons set forth below.
Lack of adequate service (Rule 4001(a)(1), Fed. R. Bankr. P.)
A motion for relief from the automatic stay "shall" be served on the creditors listed on Debtor's list of 20 largest creditors (if, as in this case, there is no creditors' committee) and such other entities at this Court directs. Id.
The motion papers do not include proof of such service (only service on
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creditors who automatically receive emails under this Court's NEF system).
See dkt. 458 (last 2 pages), dkt. 484.
LA Fire has not established an exception to the automatic stay under 11 U.S.C. 362(b)(4)
The filing of the bankruptcy petition imposes the automatic stay (11
U.S.C. 362(a)), but that stay does not apply to "the commencement or continuation of an action or proceeding by a governmental unit ... to enforce such governmental unit's or organization's police and regulatory power "
11 U.S.C. 362(b)(4) (emphasis added). Two alternative tests determine whether government actions are exempted from the automatic stay: the pecuniary purpose test and the public policy test.
Under the pecuniary purpose test, this Court must determine "whether the government action relates primarily to the protection of the government’s pecuniary interest in the debtor’s property or to matters of public safety and welfare." In re Dingley, 852 F.3d 1143, 1146 (9th Cir. 2017) (internal citation and quotation omitted, emphasis added). Under the public policy test, this Court must determine whether the government’s action is intended to "effectuate public policy" or, at the other extreme, to "adjudicate private rights." Id. (internal citation and quotation omitted).
LA Fire argues that its proposed audit satisfies these tests - i.e., that the audit is necessary to protect "public safety and welfare" or "to effectuate public policy," rather than being just collection of a contractual debt. See dkt. 459, 485. The tentative ruling is that Debtor's arguments (dkt. 479) are more persuasive.
It would be one thing if Debtor were conducting ongoing operations, because then if past fraud were to be uncovered by an audit that might help protect the public from future fraud. But that is not the present situation.
Debtor is liquidating, and this dispute is about money - nothing more.
LA Fire's cited decisions are distinguishable. One decision involved violations of Massachusett’s consumer protection act, but LA Fire's proposed audit has not been shown to result in any greater protection of consumers in this case. In re First Alliance Mortg. Co., 263 B.R. 99, 108 (9th Cir. BAP 2001). Another decision was based on violations of the National Labor Relations Act, which also is not at issue in this case. N.L.R.B. v. Continental Hagen Corp., 932 F.2d 828, 833 (9th Cir. 1991). Another decision involved the IRS’ revocation of a debtor’s tax-exempt status, which promoted public welfare by assuring the public and potential donors that contributions would
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be used in future for legitimate charitable purposes, but no similar facts are presented in this case. In re Universal Life Church, Inc., 128 F.3d 1294, 1298 (9th Cir. 1997). In another decision, an award of sanctions for frivolous conduct in litigation served a public purpose of deterring such conduct in future, but this case involves damages arising from a contractual relationship, not sanctions. In re Berg, 230 F.3d 1165, 1168 (9th Cir. 2000). Lastly, one decision involved HUD’s subpoena and audit based on potential fraud, but LA Fire has not established that the chapter 11 debtor in that case had ceased all ongoing operations, like Debtor in this case; and in any event the decision is out-of-circuit and non-binding. U.S. Dept. Housing & Urban Dev. v. Sutton, 68 B.R. 89, 91-94 (D. E.D. Mo. 1986).
In sum, the tentative ruling is that LA Fire has not established that any exception to the automatic stay is applicable to it.
LA Fire has not established "cause" for relief under 11 U.S.C. 362(d)(1)
LA Fire argues in the alternative that if the automatic stay applies then relief from the stay should be granted to conduct an audit and determine the amount of its claim. Dkt. 459, p.7:24-p.8:14. Debtor counters (A) that Movant's claim (Claim no.140) was filed after the claims bar date (dkt. 479, p.5:6-11) and alternatively (B) it is a general unsecured claim, and Debtor projects that its bankruptcy estate will not have any funds to distribute to such claims, so granting the R/S Motion would only burden the estate with needless expenses. Dkt. 479, p.5:12-17.
On the first issue (untimely proof of claim) LA Fire replies that Debtor has been serving it at the wrong address (dkt. 485, pp.2:21-4:9); and that Debtor has not objected to its claim so that claim is deemed allowed. Id. The tentative ruling is that LA Fire has the better of these arguments (without prejudice to either party's rights to argue the merits of any future claim objection).
But the tentative ruling is that Debtor's second argument is persuasive.
LA Fire has not established that an audit would make any difference to its claim, and any audit would only drain the estate, because under present projections there will be nothing to distribute on account of LA Fire's claim.
LA Fire argues that Debtor's projected 0% dividend is unsupported; but Debtor's opposition papers do include some support: a declaration that Debtor has engaged in an analysis of assets and claims, and that Debtor's projected waterfall of distributions under the Bankruptcy Code results in no
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divided to general unsecured creditors. That is some evidence, albeit not as strong as it could be; and LA Fire has not presented any evidence to the contrary. In addition, Debtor concedes that, if its projections turn out to be incorrect, then the issue can be revisited. Debtor's evidence is enough, given the summary nature of proceedings on relief from the automatic stay (and those proceedings are summary in nature precisely so that, among other things, the cost of litigation does not consume the bankruptcy estate).
True, there are two grounds on which LA Fire appears to assert something more than just a general unsecured claim. First, its proof of claim asserts priority under 11 U.S.C. 507(a)(8) for a portion of its claim (under
$45,000 out of a total of over $1.8 million). But LA Fire does not argue that issue in its reply. In addition, there is no evidence that LA Fire's claim is for a "tax" or "customs duty" as required to come within 11 U.S.C. 507(a)(8). So LA Fire has not established any priority under section 507.
Second, LA Fire appears to argue that it should be paid ahead of other general unsecured creditors because Debtor billed and collected from insurers and others without remitting the appropriate funds to LA Fire, which it characterizes as fraudulently converting funds that never belonged to Debtor's estate. Dkt. 485, pp.4:25-5:7. But LA Fire does not support this argument with any citations to evidence or legal authority to establish Debtor's lack of ownership of the funds it collected.
For example, consider an ambulance trip that included not only services provided by Debtor's personnel but also medical services provided by LA Fire. Debtor may have billed insurers for that trip, including those medical services, but there is no evidence that Debtor was contractually obligated to, and did, segregate any billing and any funds received. To the contrary, under section 3.1 of the parties' agreement (dkt.459, Ex.A) Debtor was required to use its own billing number to collect from insurers, and there is no provision for any segregated account.
Put differently, LA Fire has not established that it is in any different position from all of Debtor's nonpriority unsecured creditors. All creditors - from a vendor of medical supplies used in Debtor's ambulances to a driver of Debtor's ambulances to a pedestrian who was hit by one of Debtor's ambulances - can assert that Debtor was contractually or legally obligated to pay them out of Debtor's revenues. But, absent some sort of segregated account dedicated to paying such creditors, or some legal priority, they must share in the general pool of assets that comprises Debtor's bankruptcy
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estate, in accordance with the Bankruptcy Code's distribution scheme.
Of course, it is extremely unfortunate for the injured pedestrian, the ambulance driver, the vendor, or LA Fire if there are no net assets to pay them. But it would be even more unfortunate if it turned out that, notwithstanding Debtor's projections, there were funds to pay something to all those creditors but instead LA Fire were given priority over those other deserving creditors without a legal basis for such priority.
In sum, LA Fire has not established "cause" for relief from the automatic stay to conduct its audit. On the present record, that audit would consume resources that the bankruptcy estate cannot afford, for no purpose.
LA Fire has not established that 11 U.S.C. 105(a) can be used to create any equitable exception to the automatic stay, or that the equities favor any such exception
Section 105(a) provides that this Court "may issue any order, process, or judgement that is necessary or appropriate to carry out the provisions of this title." LA Fire argues that that the "public policy interests of promoting the certainties associated with and in furtherance of protecting the parties' contractual obligations" weighs in favor of this Court exercising its equitable powers under Section 105(a) to grant the R/S Motion. Dkt. 459, p.9:19-22.
First, this Court's general equitable powers cannot be used to override the Bankruptcy Code's distribution scheme. See Czyzewski v. Jevic Holding Corp., 137 S.Ct. 973 (2017) (bankruptcy court cannot depart from Bankruptcy Code's distribution scheme). That alone defeats LA Fire's argument.
Alternatively, the tentative ruling is that the equities cut against LA Fire, rather than in its favor. Debtor argues persuasively that the audit should have been conducted over a year ago, and Debtor is winding down its operations and does not have the personnel or resources to assist with an audit. See dkt. 479, p.9:10-p.10:6. In addition, as set forth above, LA Fire has not established that, even if the audit produced evidence of fraud, that would make LA Fire any more deserving of a distribution that Debtor's other creditors, whether they are injured pedestrians, drivers, vendors of medical supplies, or others whose deserving claims may go unpaid.
(iii) Conclusion
For the reasons set forth above, the tentative ruling is to deny the R/S Motion, without prejudice.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling,
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thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Continue this statuts conference as set forth below. Appearances are not required on 12/17/19.
Current issues
Debtor's omnibus objection to employee claims under the Warn Act (dkt. 438)
Grant, with a caution to Debtor that in the future claim objections should include a cost benefit analysis, as required by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Debtor's third motion to extend exclusivity period and period to assume or reject unexpired leases of non-residential real property (dkt. 444)
Grant - i.e., (i) extend Debtor's exclusive right to file a plan of reorganization and gain acceptance of a plan of reorganization to and including 2/1/20 and 5/1/20 respectively, and (ii) extend the period in which Debtor may assume or reject unexpired leases of non-residential real property to and including 2/1/20.
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Proposed orders: Debtor is directed to lodge a proposed order on each of the above matters via LOU within 7 days after the hearing date. See LBR
9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Continue this statuts conference as set forth below. Appearances are not required on 12/10/19.
Current issues
This Court has reviewed the parties latest filed documents and is not aware of any issues that warrant a status conference at this time.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/17/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/5/19:
Continue this statuts conference as set forth below. Appearances are not required on 11/5/19.
Current issues
This Court has reviewed the parties latest filed documents and is not aware of any issues that warrant a status conference at this time.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies
1:00 PM
Monserrat Morales
1:00 PM
(2) Approving Overbidding Procedure; (3) Authorizing Payment of Real Estate Brokers' Commission and Ordinary Costs of Sale; and (4) Finding Purchaser is a Good Faith Purchaser
Docket 464
Please see the tentative ruling for the status conference (calendar no. 8, 1/14/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
1:00 PM
Docket 469
- NONE LISTED -
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
1:00 PM
LOS ANGELES COUNTY FIRE DEPARTMENT
vs DEBTOR
Docket 458
Please see the tentative ruling for the status conference (calendar no. 8, 1/14/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Los Angeles County Fire Dept. Represented By Jacquelyn H Choi
1:00 PM
Docket 1
Tentative Ruling for 1/14/20:
Appearances are not required on 1/14/20.
Current issues
Objection to Claim 10 (dkt. 99), Stipulation & Order to continue hearing (dkt. 99, 124), response of Jesus Quintero's ("Quintero") (dkt. 124), no reply is on file
DENY the objection, without prejudice, for the same reasons as set forth in the tentative ruling for 12/17/19 (reproduced below) with respect to other claims (see part "(1)(a)" of that tentative ruling). The tentative ruling is not to determine the merits of the parties' disputes and liquidate the claim, but rather to leave those issues to nonbankruptcy fora, as set forth below (see part "(1)(b)" of this tentative ruling).
Proposed order: Quintero is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling and the 12/17/19 tentative ruling, thereby adopting that reasoning as this Court's final ruling, subject to any changes ordered at the hearing. See LBR
9021-1(b)(1)(B).
Continued hearing on Quintero's Motion for Relief from Stay (the "R/S Motion") (dkt. 48), Debtor's response (dkt. 60), Movant's reply (dkt. 62), Order granting partial relief (dkt. 64)
This Court previously granted the R/S Motion only insofar as conducting discovery, and temporarily denied other relief so as to give Debtor the "breathing spell" contemplated by the Bankruptcy Code. The tentative ruling is to grant further relief from the automatic stay at this point, by modifying the automatic stay to permit the parties to liquidate the claim and resolve their disputes on the merits by concluding their litigation in
1:00 PM
nonbankruptcy fora, but (a) without permitting enforcement of any judgment against property of the bankruptcy estate (e.g., Quintero could collect from insurance, but not from Debtor, except pursuant to a confirmed chapter 11 plan or as otherwise ordered by this Court) and (b) with any claims arising from the nonbankruptcy litigation being subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
Proposed order: Quintero is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19) (dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19) (dkt. 16)
Plan/Disclosure Statement*: 2/18/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Claim objections
1:00 PM
Legal standards for objections to claim
"The term 'claim’ is broadly defined to mean "a right to payment,
whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secure, or unsecured . . . . " 11 U.S.C. 101(5)(A) (emphasis added). The term also broadly includes a "right to an equitable remedy for breach of performance . . . ." 11 U.S.C. 101(5)(B). "The Code utilizes this ‘broadest possible definition’ of claim to ensure that ‘all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." In re SNTL Corp., 571 F.3d 826, 838 (9th Cir. 2009).
Furthermore, "a claim may exist for bankruptcy and discharge purposes long before a cause of action accrues under nonbankruptcy law." Id., at 839. "It is only necessary that the creditor be able to fairly or reasonably contemplate the claim’s existence as of the petition date." Id.
The exclusive grounds under which a debtor may successfully object to a claim are listed in 11 U.S.C. 502(b). In re Heath, 331 B.R. 424, 435 (9th Cir. BAP 2005); In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005).
Failure to attach supporting documentation is not a sufficient basis to disallow a claim
See Heath, 331 B.R. at 435 ("a request for complete disallowance of the claim merely because of inadequate documentation" is not a proper objection").
The fact that a claim is contingent is not a proper basis to disallow a claim under section 502(b)(1)
Section 502(b)(1) provides that a claim is not allowable if it is unenforceable under the applicable agreement or law "for a reason other than because such claim is contingent or unmatured." 11 U.S.C. 502(b)(1). "Under section 502(b)(1), [ ] contingent claims cannot be disallowed simply because the contingency occurred postpetition." SNTL Corp., 571 F.3d at 838.
Claim objections without merit can be overruled, and should be, even absent a response by the claimant
It is often more costly in money and time for a creditor to respond than a claim is expected to be worth, because even if the claim is allowed it will only be paid in what are sometimes called "tiny bankruptcy dollars" (i.e., pennies on the dollar). In addition, any litigation will increase the administrative expense of the debtor's counsel, thereby further reducing recoveries even if the claimant prevails. Recognizing these disincentives to
1:00 PM
fight claim objections, and also recognizing that claim objections that are not well taken should not be sustained, bankruptcy courts often overrule claim objections even without any opposition by the claimant. See, e.g., Heath, 331
B.R. 424, 427 (affirming bankruptcy court's allowance of claims, despite most creditors' lack of participation before that court or on appeal, and noting bankruptcy court's statement that "[i]t's more trouble [for most Creditors] to respond than the claim is worth"). That approach is consistent with Rule 55(b)(2)(C) and (D) (Fed.R.Civ.P., incorporated by Rules 7055, 9001(7) and 9014(c), Fed.R.Bankr.P.), which give the trial court discretion to conduct a "prove up" hearing any deny recoveries even when the defendant/respondent defaults.
Objection to Claim 6 (dkt. 89), no opposition is on file The tentative ruling is to DENY the objection because, as set forth
above, lack of adequate documentation and the fact that the claim is disputed and contingent are not proper grounds to disallow Claim 6 under 502(b).
Objection to Claim 12 (dkt. 91), opposition papers of Joseph Frugard ("Mr. Frugard"), including declaration of Rita Leong ("Leong Decl.") (dkt. 112, 113, 114), Debtor's reply (dkt. 120)
The tentative ruling is to DENY the objection in-part because the only grounds Debtor raises for disallowance of the claim are that the claim is contingent and disputed and a duplicate of Proof of Claim 9. As set forth above, the fact that the claim is disputed and contingent is not a proper basis to disallow Claim 12, so the claim objection is denied on that basis. The tentative ruling is to CONTINUE the objection to the date set forth below for the continued status conference to address Debtor's assertion that Claim 12 is a duplicate of Claim 9, so the matter can be heard concurrently with Debtor's objection to Claim 9.
This Court declines to address Mr. Frugard's arguments in support of whether this Court should authorize his filing of a class claim under Rule 7023 (Fed. R. Bankr. P.), because Debtor did not raise that issue in the Claim Objection so that request is not properly before this Court at this time.
Similarly, Debtor's reply argues against this Court estimating Claim 12 under section 502(c)(1), but that argument is irrelevant because neither Debtor nor Mr. Frugard have requested any such relief.
Objection to Claim 13 (dkt. 92), Joseph Frugard's opposition (dkt. 116, 117), no reply is on file
The tentative ruling is to DENY the objection because, as set forth
1:00 PM
above, lack of adequate documentation and the fact that the claim is disputed and contingent are not proper grounds to disallow Claim 13 under 502(b).
Objection to Claim 14 (dkt. 93), no opposition is on file The tentative ruling is to DENY the objection as follows. Failure to
comply with Rule 3001 (Fed. R. Bankr. P.) does not alone justify disallowing the claim. The fact that the claim is disputed and contingent are not proper grounds to disallow Claim 14 under 502(b).
Summary
Nothing in the foregoing tentative rulings should be construed to prevent Debtor from defending against or objecting to these claims, either in nonbankruptcy fora or, if appropriate, in this Bankruptcy Court, on any grounds recognized by 11 U.S.C. 502(b). Nor does anything in the foregoing tentative rulings prevent Debtor or any creditor from filing proper papers regarding class certification (under, e.g., Rules 7023 and 9014(c), Fed.R.Bankr.P.), or to estimate claims if the fixing or liquidation of the claim would unduly delay the administration of the case or otherwise satisfy the requirements of 11 U.S.C. 502(c).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19) (dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19) (dkt. 16)
Plan/Disclosure Statement*: TBD (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/14/20 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Continue to 12/17/19 at 1:00 p.m. concurrent with other matters. Appearances are not required on 12/10/19.
Tentative Ruling for 10/29/19:
Continue as set forth below. Appearances are not required on 10/29/19.
Current issues
This Court has reviewed Debtor's status report (dkt. 83) and 8/31/19 MOR (dkt.72) and has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19) (dkt. 31, 32)
Plan/Disclosure Statement*: TBD (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/10/19 at 1:00 p.m., No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
JESUS QUINTERO
vs DEBTOR
Docket 48
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference (calendar no. 11, 1/14/20 at 1:00 p.m.).
[Prior tentative rulings omitted]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Jesus Quintero Represented By Jennifer L Rusnak
1:00 PM
fr. 12/17/19
Docket 90
- NONE LISTED -
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
fr. 12/17/19
Docket 99
Please see the tentative ruling for the status conference (calendar no. 11, 1/14/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20
Docket 1
Tentative Ruling for 1/14/20:
Appearances are not required on 1/14/20.
Current issues
Debtor's motion to extend exclusivity periods (dkt. 176)
Grant - i.e., extend Debtor's exclusive right to file a plan of reorganization and gain acceptance of a plan of reorganization to and including 4/28/20 and 6/26/20 respectively.
Debtor's motion to extend time to assume or reject non-residential real property leases (dkt. 177)
Grant - i.e., extend the period in which Debtor may assume or reject unexpired leases of non-residential real property to and including 4/26/20.
Proposed order: Debtor is directed to lodge proposed orders on each of the above motions via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 2/18/20 at 1:00 p.m. to be concurrent with other scheduled matters. No written status report required.
*Warning: special procedures apply (see order setting initial status
1:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances are not required on 1/7/20.
Current issues
Cash collateral motion (dkt. 5)
Grant on a further interim basis, on the same terms and conditions as previously ordered, except for the revised budget (dkt. 167, Ex.A), through the conclusion of a continued hearing on 2/18/20 at 1:00 p.m.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/14/20 at 1:00 p.m. to be concurrent with other scheduled matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior Tentative Rulings omitted]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 176
Please see the tentative ruling for the status conference (calendar no. 16, 1/14/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 177
Please see the tentative ruling for the status conference (calendar no. 16, 1/14/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 1
Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Dismissal, or other relief
The tentative ruling is to dismiss this case with a 180-day bar against being a debtor in bankruptcy for willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g). At the hearing on 1/7/20 this Court was persuaded to continue this status conference, even though it appeared that Debtor has done almost nothing to meet its obligations as a Debtor In Possession, to see if Debtor belatedly would file "first day" motions and otherwise meet its obligations. See generally US Trustee Motion to Dismiss (dkt.18). Despite that continuance, the docket still does not reflect any progress - even Debtor's belated status report (dkt.20) is not on the form required by this Court's order (dkt.6), and is woefully inadequate. In addition, as pointed out by Debtor's landlord (dkt.22), Debtor lacks any right to remain in its premises, so there does not appear to be any legitimate purpose in allowing this bankruptcy case to proceed.
Proposed order: The United States Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any modifications at the hearing. See LBR 9021-1(b)(1)(B).
United States Trustee's Motion For The Appointment Of A Patient Care Ombudsman (the "Patient Care Motion," dkt. 21)
The tentative ruling is that, if this case is not dismissed, to grant the Patient Care Motion, subject to any opposition at the hearing.
Proposed order: The United States Trustee is directed to lodge a
1:00 PM
proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 12/12/19.
Bar date: N/A (DO NOT SERVE notice yet - if this case is not dismissed, this Court will set a bar date and will prepare an appropriate order after the status conference).
Procedures order: dkt. 6 (timely served, dkt. 13)
Plan/Disclosure Statement*: N/A
Continued status conference: If this case is not dismissed, the tentative ruling is to set a continued status conference for 1/28/20 at 1:00 p.m., no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required by counsel for the debtor and by debtor's principal, Khaleel Multani.
Current issues
Status report
Per this Court's Order Setting Principal Status Conference (dkt. 6), Debtor was required to file a status report no later than 12/24/19. As of the drafting of this tentative ruling, Debtor has filed a proof of service of that report (dkt.14) but not the actual status report itself. Why not?
Debtor's counsel is directed to address orally all of the issues that should have been presented in the status report, including but not limited to whether Debtor has consumers' health care information that needs to be protected, and whether this Court should appoint a health care ombudsman.
1:00 PM
Debtor's counsel also is directed to address orally what sanctions or other remedies this Court should impose for failing to file a status report.
First day motions
No "first day" motions have been filed. Why not?
Inaccurate papers
Debtor is a corporation but Debtor has filed a statement (dkt. 16) asserting that it has no equity holders. How is that possible?
Similarly, Debtor has filed a statement (dkt.2) asserting that no entity owns more than 10% of Debtor's equity interests; but an "entity" includes individuals (see 11 U.S.C. 101(15)&(41)). Is it really true that no person or other entity owns more than 10% of Debtor's equity interests?
On Debtor's bankruptcy petition (dkt.1, p.3, line 12) Debtor reports having real or personal property that needs immediate attention, but then Debtor has failed to complete the portions of the form explaining why. Is there actually any property that needs immediate attention (e.g., any health or safety hazard from medical materials)?
Given the foregoing matters, is Debtor accurately completing the other required bankruptcy forms?
Deadlines/dates. This case was filed on 12/12/19.
Bar date: 3/11/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 6 (timely served, dkt. 13)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., initial status report due 1/9/20, brief supplemental status report due 2/10/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
1:00 PM
Docket 21
Please see the tentative ruling for the status conference (calendar no. 19, 1/14/20 at 1:00 p.m.)
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 962
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
Docket 332
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19
Docket 422
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19
Docket 428
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19
Docket 1
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the main case status conference (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the main case status conference (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the main case status conference (calendar no. 12, 11/5/19 at 2:00 p.m.).
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the adversary status conference (calendar no. 16, 9/24/19 at 2:00 p.m.).
Tentative Ruling for 8/20/19:
Please see tentative ruling for the adversary status conference (calendar no. 15, 8/20/19 at 2:00 p.m.).
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
2:00 PM
Tentative Ruling for 7/2/19:
At the 6/4/19 hearing this Court took the Motion for Summary Judgment (adv. dkt. 98) under submission and anticipates issuing an order at a later time.
Tentative Ruling for 6/4/19:
[No tentative ruling was posted]
Tentative Ruling forn 5/21/19:
Appearances are not required on 5/21/19. The tentative ruling is to continue the hearings in these related adversary proceedings (calendar no. 13 & 14, 5/21/19) to the date of the continued status conference (see below).
Current issues
The tentative ruling on the Motion to Compel (dkt. 104) and the Order to Show Cause ("OSC," dkt. 107) is to continue these matters as requested in the response of Aston Business Solutions, Inc. (dkt. 110, 111). This Court contemplates that the deadlines for completion of discovery and other matters will need to be extended, and the parties are directed to meet and confer and, if they can agree to new deadlines, lodge a proposed order. If they cannot agree, this Court anticipates setting new deadlines at the continued status conference.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 6/11/19 at 2:00 p.m. No written status report required.
Lodge Joint Proposed Pre-Trial Order: TBD
2:00 PM
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/19:
Continue as set forth below. Appearances are not required on 4/30/19.
This Court has reveiewed the latest filed documents in this adversary proceeding and is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 5/21/19 at 11:00 a.m., with a brief status report due by 5/7/19.
2:00 PM
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Supplemental Tentative Ruling for 4/9/19:
The original tentative ruling (below) provides two inconsistent dates for a continued status conference: 4/30/19 at 11:00 a.m., 4/7/19 at 11:00 a.m.
The latter [should be "former"] is correct. No status report required.
Tentative Ruling for 4/9/19:
Deny the motion to quash (with the possible exception of one aspect), address procedural issues, and then continue this Status Conference, all as set forth below. Appearances required.
Current issues:
Procedures
Please see the tentative ruling for the main case status conference (calendar no. 10, 4/9/19 at 11:00 a.m.)
Motion to Quash (adv. dkt. 84)
The tentative ruling is that the motion to quash (adv. dkt. 84) by Aston Business Solutions, Inc. ("ABS") is unpersuasive, except perhaps for limitations as to time, which the parties are directed to address at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within
2:00 PM
7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Analysis re motion to quash
ABS asserts only vague objections:
Competitors?
ABS asserts that it and Plaintiff are competitors. How so?
The motion does not even disclose ABS' business. Is it a timeshare owner? Is it a timeshare operator? Is it something else? (As noted below, this Court expects that it has gleaned the answer from other documents, but the tentative ruling is that this lack of even such basic information in the motion is fatal to this argument.)
Protected information?
ABS alleges that some sort of trade secrets or other confidential, privileged, or other type of protected information is involved. What sort of information? Why would a traditional privilege log and other tools be inadequate?
ABS complains that parties in interest in this bankruptcy case have shared information. But ABS fails to point to any prohibition on sharing information.
Burden?
ABS alleges that the requested discovery is unduly burdensome. How so? Is it stored in thousands of boxes of paper files that are difficult to reach and review for some reason?
Vagueness and overbredth?
ABS alleges that the discovery requests are vague and overbroad. How so? ABS fails to provide any explanation or evidence to support this allegations.
Discussion
Based on a question (not an answer) in excerpts from the deposition of ABS' President and shareholder, Glenn Chaffin, ABS may be a marketing company for "timeshare exit companies." Adv. dkt. 84, Ex.1 (Depo. Tr.
1/24/19), p.95:22-23. But how does that make ABS a "competitor" of Plaintiff, with information that would constitute trade secrets, as opposed to a faciliatator of (possibly) legitimate ways to exit timeshares, who sends out
non-secret flyers and other publicly known marketing materials, and assists timeshare members in navigating contracts that are known to all the parties?
2:00 PM
Such a facilitator theoretically could benefit Plaintiff, by replacing non-
paying or troubled members with paying ones - unless, of course, ABS engages in acts that improperly interfere with contractual relations or otherwise assists in the wrongdoing of which Plaintiff accuses Defendants. Plaintiff's discovery appears to be targeted at discovering information that could lead to admissible evidence on this and other relevant issues.
Accordingly, the discovery appears to be entirely proper and appropriate, with the possible exception of the movant's request to impose some limitations as to time, which the parties are directed to address at the hearing.
Adversary proceeding status conference issues
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90).
Continued status conference: 4/30/19 at 11:00 a.m., no status report required.
Dispositive motions to be heard no later than: TBD Joint Status Report: N/A
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No. 2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB, dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
2:00 PM
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/19:
Continue as set forth below. Appearances are not required on 3/26/19.
This Court has reveiewed the latest filed documents in this adversary proceeding, includings the parties' status reports (dkt. 89, 91). This Court is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No. 2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB, dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
2:00 PM
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/26/19:
This Court has reviewed the parties' joint status reports (dkt. 74, 75) and the other filed documents and records in this adversary proceeding. It appears there is little to address at this status conference, but this Court is requiring appearances to assure that this matter is moving forward. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 4/15/19 (adv. dkt. 59). Expert(s) - deadline for reports: 4/29/19 (adv. dkt. 59).
Expert(s) - deadline for rebuttal reports: 5/27/19 (adv. dkt. 59). Dispositive motions shall be filed no later than: 7/1/19 (adv. dkt. 59). Dispositive motions to be heard no later than: TBD
Joint Status Report: 3/12/19.
Continued status conference: 3/26/19 at 11:00 a.m.
2:00 PM
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/29/19:
Continue to 2/26/19 at 11:00 a.m., in view of the extended deadlines (adv. dkt. 59) and the anticipated motion for joint administration with a case before Judge Russell (adv. dkt. 74). Appearances are not required on 1/29/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
2:00 PM
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18, 1/30/18, 4/9/19; 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19, 9/24/19, 11/12/19, 12/17/19
Docket 1
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 7, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 27, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 17, 11/12/19 at 2:00 p.m.).
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 16, 9/24/19 at 2:00 p.m.).
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 18, 8/20/19 at 2:00 p.m.).
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
2:00 PM
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 18, 7/2/19 at 2:00 p.m.).
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 9, 6/4/19 at 2:00 p.m.).
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 14, 5/21/19 at 2:00 p.m.).
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the adversary proceeding this proceeding is being jointly administered with (calendar no. 5, 4/30/19 at 11:00 a.m.).
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the main case status conference (calendar no. 10, 4/9/19 at 11:00 a.m.)
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address (a) why they failed to file the required status report, (b) why the motions for joint administration/consolidation of the two closely related adversary proceedings have not been prosecuted, and (c) the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif,
2:00 PM
135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not formalize the fact that the pending mediation includes this adversary proceeding by issuing an order to mediate this matter together with related adversary proceeding (2:17-ap-01229-NB)? The tentative ruling is to direct counsel for the defendants to lodge a proposed order to that effect.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C. Vanderhoof
2:00 PM
Trustee(s):
Daniel M Eliades
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19
Docket 1
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 12/4/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Trustee's emergency motion for an order allowing Trustee to ascertain and preserve the status quo condition of Aston Business Solutions, Inc. (adv. dkt. 82)
There is no tentative ruling, but the first issue this Court will address is whether to hear the merits of the motion on such an expedited schedule.
Then, if appropriate, this Court will address the merits of the motion and any oral or written opposition and reply.
Status Conference in Adversary Proceeding (2:17-ap-01545-NB)
Continue this status conference to 12/17/19 at 2:00 p.m., to be concurrent with other matters.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior tentative rulings omitted]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
2:00 PM
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/7/19
Docket 80
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
of Eric Malloch Taken on March 6, 2019 in Support of Opposition to Motion for Summary Judgment by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 99
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
Opposition to Motion for Summary Judgment by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 100
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 101
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
of David MacMillan Taken on October 2, 2014 in Case of Americana Vacation Club vs. Poy Developers, LLC., Superior Case No. SC20130046
in Support of Opposition to Motion for Summary Judgment by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 102
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
2:00 PM
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 103
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
Opposition to Motion for Summary Judgment by Aston Business Solutions, Glenn Chaffin, and Erica Martin
Docket 98
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Movant(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Docket 43
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
2:00 PM
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
fr. 12/17/19
Docket 66
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference (calendar no. 17, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 20, 12/17/19 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Docket 2
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
Glenn J. Chaffin Pro Se
Movant(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
2:00 PM
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01156 Gonzalez v. Karen et al
fr. 7/30/19, 9/24/19, 10/29/19, 12/10/19, 12/17/19
Docket 1
Continue to 2/18/20 at 2:00 p.m. for the parties to document their settlement (see Mediator's report, adv.dkt.28) and, if necessary or appropriate, file a motion for approval of their settlement under Rule 9019 (Fed. R. Bankr. P.) or any other appropriate papers. Appearances are not required on 1/14/20.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David M. Karen Represented By Keith S Dobbins
DK Law Group, LLP Represented By Keith S Dobbins
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
2:00 PM
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 13
Debtor(s):
Kelle Caaren Evans Pro Se
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Docket 12
Debtor(s):
Jacob Dean Hernandez Represented By Curtis R Aijala
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 11
Debtor(s):
Sergio Silva Represented By
Benard C Udeozor
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 17
Debtor(s):
Richard Atkinson Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
[Logix Federal Credit Union] - 2011 Porsche 911
Docket 9
Debtor(s):
Rodney Albert Hairston Pro Se
Joint Debtor(s):
Jemeker Machell Hairston Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
[Logix Federal Credit Union] - 1964 Chevrolet Impala SS
Docket 10
Debtor(s):
Rodney Albert Hairston Pro Se
Joint Debtor(s):
Jemeker Machell Hairston Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 13
Debtor(s):
Rodney Albert Hairston Pro Se
Joint Debtor(s):
Jemeker Machell Hairston Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Sayra A Villatoro Represented By
Sevag Nigoghosian
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Tina Mouchekh Helwajian Represented By Henrik Mosesi
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
[Capital One Auto Finance. a division of Capital One. N.A]
Docket 11
Debtor(s):
Alma Carrillo Represented By Peter M Lively
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
Docket 15
Debtor(s):
Samuel Valentine Goldstein Represented By Barry E Borowitz
Joint Debtor(s):
Karlie Marie Goldstein Represented By Barry E Borowitz
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Dina Maritza Delgado Represented By Marlin Branstetter
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 11
Debtor(s):
Leonard Herbert Levitsky Represented By Peter M Lively
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 14
Debtor(s):
Bakhsho Peter Petrosyan Represented By Gregory Grigoryants
Joint Debtor(s):
Avenia S Petrosyan Represented By Gregory Grigoryants
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
[Capital One Auto Finance. a division of Capital One. N.A.]
Docket 10
Debtor(s):
Alexei Pak Represented By
Barry E Borowitz
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 13
Debtor(s):
Francisco J Gutierrez Represented By Jorge F Isla
Joint Debtor(s):
Dina I. Gutierrez Represented By Jorge F Isla
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Raul Nelson Bauer Represented By Daniel King
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 12
Debtor(s):
Willie E Montoya Represented By Daniel King
Joint Debtor(s):
Dora Gloria Montoya Represented By Daniel King
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
[Ford Motor Credit Company LLC] (2015 Ford Fusion)
Docket 12
Debtor(s):
Roger W Seward Represented By David S Hagen
Joint Debtor(s):
Lori L Seward Represented By David S Hagen
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 10
Debtor(s):
Lesbia Veronica Hernandez Represented By
Lisa F Collins-Williams
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 14
Debtor(s):
Emilia Ochoa Macias Represented By
Lisa F Collins-Williams
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 15
Debtor(s):
Sharon D. Bartlett Represented By Mufthiha Sabaratnam
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Oralia Flores Represented By
Raymond Perez
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Jasmine Yijans Lopez Represented By Philomena N Nzegge
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Larissa Ramirez De Ruelas Represented By Peter M Lively
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Marquesha S Lynch Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 19
Debtor(s):
Erik Rios Pro Se
Joint Debtor(s):
Dalia Obdulia DelArenal Pro Se
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 11
Debtor(s):
Maria Gloria Piz Lopez Represented By Leonard Pena
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 24
Debtor(s):
Melissa A Snee Pro Se
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 12
Debtor(s):
Carlos Contreras Represented By
Michael H Colmenares
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Norma Angelica Perez Represented By
Michael H Colmenares
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 7
Debtor(s):
Luis Javier Mejia Jr Pro Se
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 15
Debtor(s):
Lydia C Gutierrez Pro Se
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Frances Lynn Koppel Represented By Peter M Lively
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 10
Debtor(s):
Morena Guadalupe Posada Represented By
Michael H Colmenares
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Violet Contreras Represented By Michael D Luppi
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 9
Debtor(s):
Violet Contreras Represented By Michael D Luppi
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
[Capital One Auto Finance. a division of Capital One. N.A.]
Docket 11
Debtor(s):
Kayla Marie Sammons Represented By Barry E Borowitz
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
[Mercedes-Benz Financial Services USA LLC]
Docket 15
Debtor(s):
Judy Ann Sisneros Pro Se
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
Docket 10
Debtor(s):
Zuleima Molgado Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
[Carmax Auto Finance] - 2008 Lexus ES 350
Docket 24
Debtor(s):
Carlos Salas Represented By
R Grace Rodriguez
Joint Debtor(s):
Annette M. Salas Represented By
R Grace Rodriguez
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
[Carmax Auto Finance] - 2016 Honda Civic
Docket 25
Debtor(s):
Carlos Salas Represented By
R Grace Rodriguez
Joint Debtor(s):
Annette M. Salas Represented By
R Grace Rodriguez
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
[Hyundai Capital America dba Kia Motors Finance]
Docket 11
Debtor(s):
Toya Emealda Johnson Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
Docket 8
Debtor(s):
Michael W Alexander Represented By Julie J Villalobos
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
Docket 12
Debtor(s):
Tamera Anne Lawrence Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
8:00 AM
Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address whether this Court should grant the relief requested in Debtor's emergency first-day motions (dkt. 19, 20, 21, 23, 25 & 26) and this Court's "Order Granting Oral Request for Emergency Hearing Pursuant to Local Bankruptcy Rule 9075-1(a) and Setting Hearing on Shortened Notice" (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
8:00 AM
Basis; (2) Granting Replacement Liens; (3) Scheduling a Final Hearing on Permanent Use of Cash Collateral; and (4) After Hearing, Authorizing Permanent Use of Cash Collateral
Docket 19
Please see the tentative ruling for the status conference (calendar no. 1, 1/23/20 at 8:00 a.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
8:00 AM
Proposed Adequate Assurance of Payment for Future Utility Services,
Prohibiting Utility Companies From Altering, Refusing or Discontinuing Services, (3) Approving the Debtors Proposed Procedures for Resolving Adequate Assurance Requests, and (4) Granting Related Relief
Docket 21
Please see the tentative ruling for the status conference (calendar no. 1, 1/23/20 at 8:00 a.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
8:00 AM
Salaries, and Other Compensation; (2) Employee Deductions; and
Authorizing and Directing Applicable Banks and Other Financial Institutions to Receive, Process, Honor Paychecks Presented for Payment and to Honor Funds Transfer Requests Relating to the Foregoing
Docket 20
Please see the tentative ruling for the status conference (calendar no. 1, 1/23/20 at 8:00 a.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
8:30 AM
Docket 38
Debtor(s):
Carlos Alonso Montero Represented By Jacqueline D Serrao
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 93
- NONE LISTED -
Debtor(s):
Ricardo Rivas Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 50
- NONE LISTED -
Debtor(s):
George Allen Jordan Represented By
Richard Mark Garber
Joint Debtor(s):
Audrey Carolyn Jordan Represented By
Richard Mark Garber
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 100
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Monica Nancy Ortega Represented By Leonard Pena
Joint Debtor(s):
Rene Ortega Represented By
Leonard Pena
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Continue to 3/26/20 at 8:30 a.m. with a deadline of 3/12/20 for the parties to file supplemental papers addressing the issues set forth in the filed objection (dkt.32). Appearances are not required on 1/23/20.
Reasons:
Service
The amended motion papers were not served until 1/7/20 (10 days before the hearing) (see dkt. 26), which is too little time before the hearing.
Evidence of senior debt
Debtor's amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19 but it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appraisal; date of valuation
The junior lienholder has requested (dkt. 32) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
(iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
- NONE LISTED -
Debtor(s):
Elizabeth Ann Goodman Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 49
Deny for lack of prosecution. Debtor had a deadline of 1/15/20 to file and serve supplemental papers, per this Court's orders (dkt.49, incorporating dkt.51 by reference). No such papers were filed by that deadline.
Appearances are not required.
Proposed order: This Court will prepare the order after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Maimoye Keenan Uku Represented By Omatshola E Dafeta
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 51
Deny for lack of prosecution. Debtor had a deadline of 1/15/20 to file and serve supplemental papers, per this Court's order (dkt.51). No such papers were filed by that deadline. Appearances are not required.
Order: This Court will prepare the order after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Maimoye Keenan Uku Represented By Omatshola E Dafeta
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 96
Appearances required. This Court has reviewed the Amended Motion For Court Approval Of Proposed Marital Settlement Agreement (dkt. 103, filed and served on some, but not all, creditors on 1/9/20). The tentative ruling is to DENY the amended motion for the reasons set forth in this Court's order setting this hearing (dkt. 100).
Order: After the hearing this Court will prepare the order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Lisa Sandoval Represented By Raymond Perez
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
#10.00 Hrg re: Stipulation Confirming No Stay in Effect for All Purposes as to Secured Creditor, its Assignees and/or Successors in Interest, With Respect to the Subject Property, Generally Described as 5115 Cimarron Street, Los Angeles
Docket 60
Appearances required. Deny.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
Either (a) Debtor's postpetition transfer of her interest in the subject real property to her former husband is void as a violation of the automatic stay (see order setting this hearing, dkt. 61), or alternatively (b) that transfer is voidable as an unauthorized postpetition transfer (see 11 U.S.C. 549) and any attempt by Movant to exercise remedies against the subject real property would undermine the bankruptcy estate's rights to recovery of that property and, therefore, would violate one or more provisions of the automatic stay.
See, e.g., 11 U.S.C. 362(a)(3). No party in interest has sought retroactive relief (as authorized by this Court's order setting this hearing, dkt.61).
In addition, it is not at all clear that this Court would grant any such retroactive relief. This Court is concerned about possible gamesmanship in the transfer of the property, because divorcing spouses have been known to structure property division and related issues such as "support" payments in ways that do not reflect factually-supported characterizations of inter-spousal
8:30 AM
obligations, but instead are counter-factual agreements structured to be disadvantageous to creditors. See, e.g., In re Sandoval (Case No. 2:17- bk-10379-NB), dkt.100 (calendar no.9 on today's calendar, 1/23/20 at 8:30 a.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rossy Elizabeth Andrickson Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 64
Continue to 2/27/20 at 8:30 a.m. to allow time for the parties to compare records and attempt to resolve the matter outside of court. Appearances are not required on 1/23/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodrigo Estrada Jr. Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Debra Ann Flores-Estrada Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 64
Grant the motion and authorize the Trustee to disburse the $23,045.21 in funds to debtor. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Jeffrey S Shinbrot
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 21
- NONE LISTED -
Debtor(s):
Richard Rualo Estacio Represented By Andrew Moher
Joint Debtor(s):
Estela Reyes Estacio Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Cross Fox Condominium, Inc.
Docket 39
Sustain the claim objection and allow the claim in the reduced amount of
$2,665.35 as a nonpriority unsecured claim. Note: The claim objection is somewhat opaque as to the exact dollar amount that Debtor believes should be disallowed, and whether any amount would qualify as a secured or priority claim; but this Court's interpretation is that the objection seeks the relief granted by this tentative ruling; no response to the claim objection has been filed; and this Court seeks to minimize any additional expenses so it appears appropriate not to require any supplemental papers or appearances at this hearing, and instead to grant the relief set forth above. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rose J West Represented By
Daniela P Romero
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Sustain the claim objection, and disallow Claims No. 23 and 24 in full. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order disallowing each of the claims via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gina Marie Darden Represented By Steven A Alpert
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
- NONE LISTED -
Debtor(s):
Pamela Coe Represented By
Sundee M Teeple
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Trustee's Motion for Order Disgorging Fees Paid to Michael Kwasigroch
Docket 18
Grant. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sukhjodh Johal Represented By
Michael D Kwasigroch
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Order to show cause why this case should not be dismissed with a 180-day bar against being a debtor in bankruptcy
Docket 16
Extend the bar against being a debtor in any future bankruptcy case for the full 180 days previously ordered (dkt.21), for the reasons set forth in this Court's order to show cause (dkt.16, 25) and the additional reasons set forth by the Chapter 13 Trustee (dkt.18). Appearances required.
Order: This Court will prepare an order after the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sukhjodh Johal Represented By
Michael D Kwasigroch
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 65
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shahrad Amir Azimi Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/19/19
Docket 140
Tentative Ruling for 1/23/20 (same as for 12/19/19):
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Trustee's motion (dkt. 140) and Debtors' opposition (dkt. 146).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Searcy Maceo Jackson III Represented By Kevin T Simon
Joint Debtor(s):
Kimyata Sharice Jackson Represented By Kevin T Simon
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Federal National Mortgage Association fr. 12/19/19
Docket 30
Debtor(s):
Carolyn Marjorie Maggio Represented By Chris A Mullen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 12/19/19
Docket 54
Tentative Ruling for 1/23/20:
Deny. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtors’ supplemental declaration (dkt. 64), supplemental proof of service (dkt. 66)
Reasons for denial:
Debtors have still not presented sufficient evidence of value
At the last hearing, this Court found that Debtors had not submitted sufficient evidence of value because their evidence only identified the "private party" value of the Vehicle, and not "the price a retail merchant would charge for the property …" as required by 11 U.S.C. 506(a)(2) (emphasis added).
This Court continued the matter to this date to allow debtors time to submit supplemental evidence.
This Court has reviewed that evidence (dkt. 64) and finds that Debtors' evidence is still insufficient. First, Debtors submitted the declaration of Giovanni Orantes (id., p.2) and two exhibits containing the results of Mr.
Orantes’ google search for vehicles of a similar condition (id., pp. 3-28). This Court finds this evidence unhelpful because it is largely inadmissible hearsay and Mr. Orantes has not established that he is an expert who is qualified to opine about the value of vehicles.
Second, Debtors submitted the declaration of Norma Y. Martinez (dkt. 64, p. 29) and print outs from Kelley Blue Book and CarMax (id., pp. 31-46).
8:30 AM
First, like Mr. Orantes there is no showing that Ms. Martinez is competent to opine as to the value of vehicles (unlike Debtors, who are deemed to be competent to opine as to the value of their own property). Second, the Kelley Blue Book printouts list the "trade-in" and "private party" values of the Vehicle (id., pp. 31-32), and although Debtor's counsel argues that it is difficult to find retail valuation this Court takes judicial notice that hundreds of motions have been filed in this Court that attach copies of "Blue Book" retail valuations.
Third, although the CarMax printout provides a value for a 2008 Toyota Tundra (which might be very comparable to Debtors' 2007 Toyota Tundra), Ms. Martinez states that she was unable to get an accurate selling price from CarMax because they only had a new vehicle with different mileage (id., p.
29:16-17). This Court is not persuaded that such a large adjustment, based on a single (hearsay) listing of one vehicle, is a sufficient basis for valuation when the "Blue Book" retail value is so readily available.
Therefore, the tentative ruling is that Debtors have again failed to establish the "replacement value" that a "retail merchant" would charge the public for a vehicle of similar age and condition, as of the petition date, "without deducting for costs of sale or marketing." 11 U.S.C. 506(a)(2).
This Court's requirement of such evidence, notwithstanding the lack of response by the creditor, is pursuant to 11 U.S.C. 105(a), 506(a)(2); Rule 104(a), 403, 602 and 701 (Fed. R. Evid.); and Rules 9014(c) and 7055 (Fed.
R. Bankr. P.) which, in this Court's discretion, incorporate Rule 55(b)(2)(B) and not Rule 55(b)(1) (Fed. R. Civ. P.). See also In re Heath, 331 B.R. 424 (9th Cir. BAP 2005) (affirming bankruptcy court's disallowance of claims even though some creditors did not respond).
No fees on this matter, absent specific authorization.
Counsel is directed not to charge any fees on this matter (including all past and present work related to this valuation motion), and to return any fees received on this matter because (1) counsel did not present proper evidence in support of the motion or comply with this Court’s directions to submit competent evidence along with the supplemental declarations, and (2) any fees paid to Counsel decrease the funds available to pay creditors. Counsel is also directed not to charge fees for any future work associated with any amended valuation motion, unless this Court enters an order granting the motion and specifically authorizes counsel’s fees.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Continue to 1/23/20 at 8:30 a.m., with a deadline of 1/9/20 to file and serve the debtors' declaration addressing the following issue. Appearances are not required on 12/19/19.
Reasons: The KBB printout states that it is a "private party" value, but under 11 U.S.C. 506(a)(2) the value means "the price a retail merchant would charge for the property ..." (emphasis added) (which this Court expects is higher than the "private party" value).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marvin E Medina Represented By Giovanni Orantes
Joint Debtor(s):
Blanca F. Medina Represented By Giovanni Orantes
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
fr. 10/24/19, 11/21/19
Docket 37
Tentative Ruling for 1/23/20 (same as for 11/21/19):
Appearances required. At the hearing on 10/24/19 this Court was persuaded to continue the matter to this date, based on the representation of counsel for the United States Trustee ("UST") that respondent Vanessa Watson has filed her own individual bankruptcy case (2:19-bk-19881-BR), to allow time for the UST to assess the effect of that bankruptcy filing and take appropriate action. There is no tentative ruling, but the UST should be prepared to provide this Court with an update on the status of its investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/24/19:
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Order Granting UST's 110 Motion for Fines and Disgorgement (dkt. 22) (the "Prior Order").
8:30 AM
Reasons: The tentative ruling is to grant the relief requested for the reasons stated in the motion, except to note that the Prior Order was entered on 6/13/19 (and not 10/25/17 as stated in the motion).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tammy Javonillo-Zimmerman Represented By Thomas B Ure
Movant(s):
United States Trustee (LA) Represented By Ron Maroko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 16
Deny, for the reasons stated in the opposition papers (dkt.35, 36), except that this Court is not persuaded that Debtor's plan in his prior case (Case No.
2:19-bk-16168-NB, dkt.8, p.7) attempted to bifurcate the objecting creditors' claims, or that the 2017 cases weigh heavily in the analysis. Appearances required.
Further analysis:
This Court is persuaded principally by the lack of evidence of changed circumstances, lack of evidence of valuation and prospects for sale of properties, the speculative nature of any reliance on a future sale, and the lack of evidence of contributions. In addition, the tentative ruling that the creditors' requests for dismissal with a bar (11 U.S.C. 109(g)(1)) are not properly before this Court (they could be addressed in connection with a motion for such relief, or at the confirmation hearing, but not in an opposition to Debtor's motion under 11 U.S.C. 362(c)(3)).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Charles L Sanchez Jr. Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 41
Appearances required. There is no tentative ruling, but debtor should be prepared to address the issues raised in this Court's "Order to Show Cause Why This Case Should Not be Dismissed" (dkt. 41, the "OSC").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michelle Louise Johns Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
NONE LISTED -
10:00 AM
RENAISSANCE HOA
vs DEBTOR
Docket 65
Debtor(s):
Rossy Elizabeth Andrickson Represented By Matthew D. Resnik
Movant(s):
RENAISSANCE HOA Represented By Neil B Katz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 74
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 76).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diane Turner Gates Represented By Brad Weil
Joint Debtor(s):
Steven Robert Gates Represented By Brad Weil
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carmen Michelle Taylor Gentry Represented By Matthew D. Resnik
Movant(s):
The Bank of New York Mellon fka Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NA
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria De Los Angeles Rea Represented By A Mina Tran
Movant(s):
Wilmington Trust, NA, successor Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST, COMPANY
vs DEBTOR
Docket 93
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 95).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Movant(s):
Deutsche Bank National Trust, Represented By Merdaud Jafarnia Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK NATIONAL ASSOC
vs DEBTOR
Docket 74
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lance Alan Castro Represented By Sanaz S Bereliani
Movant(s):
US Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 37
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Maria Alcaraz Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Maria Refugio Alcaraz Represented By Jaime A Cuevas Jr.
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERIHOME MORTGAGE COMPANY, LLC
vs DEBTOR
Docket 34
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jennifer Ann Kokoris Represented By Nima S Vokshori
Movant(s):
AmeriHome Mortgage Company, Represented By
Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
QUICKEN LOANS, INC.
vs DEBTOR
Docket 29
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Noemi Arroyo Represented By Jaime A Cuevas Jr.
Movant(s):
Quicken Loans Inc. Represented By
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 30
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Guadalupe C. Alfaro Represented By Richard A Loa
Movant(s):
Lakeview Loan Servicing, LLC Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:16-bk-25563-NB) was dismissed (on 12/4/18) within one year before this case was filed (on 10/30/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carmen Zazueta Montalvan Represented By Raymond J Bulaon
Joint Debtor(s):
Shannon Patricia Montalvan Represented By Raymond J Bulaon
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
CARISBROOK ASSET HOLDING TRUST
vs DEBTOR
Docket 46
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does apply
Movant requests an order confirming that no stay is in effect because Debtor's prior case was dismissed within one year before this present bankruptcy case was filed, and Debtor's motion to impose or continue the stay (the "Stay Motion," dkt. 17) was not with respect to Movant or the subject property. On the one hand, Movant is correct about the scope of Debtor's Stay Motion. On the other hand, this Court's order (dkt. 37) granting the Stay Motion imposed/continued the stay as to all property of the bankruptcy estate, and if the subject property was transferred to Debtor then it may be part of the estate, and thus subject to this Court's order continuing the stay.
True, this Court's order might be subject to challenge as granting more relief than requested; but as of the preparation of this tentative ruling no such challenge has been asserted and that order is still effective. Therefore, the tentative ruling is not to grant relief on this ground.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
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present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP
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2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
Movant(s):
Carisbrook Asset Holding Trust Represented By
Kelly M Kaufmann
10:00 AM
FREEDOM MORTGAGE CORPORATION
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-12483-NB) was dismissed (on 3/26/19) within one year before this case was filed (on 11/27/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Hernandez & Jiminez, Case No. 2:11-bk-53730-NB, Dkt 40.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re
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Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should
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not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rafael Antonio Arevalo Pro Se
Movant(s):
Freedom Mortgage Corporation Represented By Mark S Krause
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 16
Grant in part and continue in part as provided below, based on the motion papers (dkt.16) and the (untimely) opposition papers (dkt.31, filed 1/17/20). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The tentative ruling is that Movant has established the predicates for "relief" from the automatic stay under 11 U.S.C. 362(d)(1) and (4) - including a scheme to "delay" or "hinder" creditors within the meaning of the latter paragraph of the statute - and that the appropriate form of relief is (A) to issue an order (suitable for recording in the real estate recorder's office) that no future bankruptcy case will affect the subject property (the "Oxford" property) - in other words, this case is the last chance for Debtor and her family to make appropriate use of the bankruptcy system regarding that property - and meanwhile (B) to require adequate protection payments, in a dollar amount to be determined at the hearing, pending a continuance to provide time for the closing of Debtor's proposed refinance of the "Woodbury" property. More specifically, the tentative ruling is as follows.
No termination
Deny the request to terminate the stay (at this time). In addition, to the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record.
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See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
For the avoidance of doubt: the foregoing "in rem" relief prevents future bankruptcy cases from affecting the Oxford property, but does not terminate the automatic stay in this present bankruptcy case.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anush Aivazian Represented By Guy R Bayley
Movant(s):
U.S. Bank National Association, as Represented By
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENSCO TRUST COMPANY, LLC
vs DEBTOR
Docket 8
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
There is no automatic stay
At a hearing on 1/23/20 at 8:30 a.m. this Court denied Debtor's motion to continue the automatic stay under 11 U.S.C. 362(c)(3). Accordingly as of 1/25/20 there is no automatic stay.
Alternatively, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
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then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Request for relief in pending and past cases
The motion "requests the Order [be] binding in any prior, current . . . bankruptcy filings by any person or entity . . . ." Dkt. 8, at PDF p. 14. On extremely rare occasions, this Court has been prepared to grant such relief, but this case does not appear appropriate for such relief. See generally In re Ervin (Case No. 2:14-bk-18204-NB, docket no. 311).
First, Movant has not cited any authority, or set forth any factual and legal analysis, supporting such relief.
Second, the tentative ruling is that procedurally the requested relief has not been properly presented. Movant would have to file an adversary proceeding seeking declaratory relief.
Third, the factual record does not appear to support such relief. The tentative ruling is that Movant has not described any facts or presented any evidence showing that effective relief cannot be granted under 11 U.S.C.
362(d)(4) because, for example, purported transfers of interests in the subject Property have been backdated multiple times in what appear to be sham, "hijacking" transactions. Absent such evidence, it would be inappropriate to grant declaratory relief that no automatic stay applied in cases pending before other Judges and/or affecting other debtors and creditors who have received no notice of the requested relief.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles L Sanchez Jr. Represented By Thomas B Ure
Movant(s):
PENSCO TRUST COMPANY, LLC, Represented By
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JL FINANCING, LLC
vs DEBTOR
Docket 13
Grant in part and deny in part as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
There is no automatic stay
At a hearing on 1/23/20 at 8:30 a.m. this Court denied Debtor's motion to continue the automatic stay under 11 U.S.C. 362(c)(3). Accordingly as of 1/25/20 there is no automatic stay.
Alternatively, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
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then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Request for relief in pending and past cases
The motion "requests the Order [be] binding in any prior, current . . . bankruptcy filings by any person or entity . . . ." Dkt. 13, at PDF p. 14. On extremely rare occasions, this Court has been prepared to grant such relief, but this case does not appear appropriate for such relief. See generally In re Ervin (Case No. 2:14-bk-18204-NB, docket no. 311).
First, Movant has not cited any authority, or set forth any factual and legal analysis, supporting such relief.
Second, the tentative ruling is that procedurally the requested relief has not been properly presented. Movant would have to file an adversary proceeding seeking declaratory relief.
Third, the factual record does not appear to support such relief. The tentative ruling is that Movant has not described any facts or presented any evidence showing that effective relief cannot be granted under 11 U.S.C.
362(d)(4) because, for example, purported transfers of interests in the subject Property have been backdated multiple times in what appear to be sham, "hijacking" transactions. Absent such evidence, it would be inappropriate to grant declaratory relief that no automatic stay applied in cases pending before other Judges and/or affecting other debtors and creditors who have received no notice of the requested relief.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles L Sanchez Jr. Represented By Thomas B Ure
Movant(s):
JL Financing, LLC Represented By
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gregory Anthon Barnes Represented By Nathan Fransen
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
CALFUND, LLC
vs DEBTOR
Docket 18
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mayra Fuentes Represented By Matthew D. Resnik
Movant(s):
Calfund, LLC Represented By
J W Holliday Timothy J Silverman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 47
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Annie Padilla Demak Represented By Jeffrey J Hagen
Joint Debtor(s):
Steven Keith Demak Represented By Jeffrey J Hagen
Movant(s):
Capital One Auto Finance, a division Represented By
Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 14
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Patrick Andrew Patterson Represented By Matthew D. Resnik
Joint Debtor(s):
Karyn Jasmine Polanco Represented By Matthew D. Resnik
Movant(s):
Santander Consumer USA Inc. dba Represented By
Jennifer H Wang
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel Oh Pro Se
Movant(s):
Bank of The West, its assignees Represented By Merdaud Jafarnia
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 5
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Manuel Carrillo Represented By Jaime A Cuevas Jr.
Movant(s):
Jose Manuel Carrillo Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 19
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Judith Gonzalez Represented By Sunita N Sood
Movant(s):
Judith Gonzalez Represented By Sunita N Sood
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA, INC.
vs DEBTOR
Docket 66
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and
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scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt."
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Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly, relief will result in a complete resolution of the issues and the action essentially involves third parties - movant will seek insurance proceeds and will turn over any excess to the chapter 13 trustee. In addition, Debtor has filed a non- opposition (dkt. 68).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
Santander Consumer USA Inc. Represented By Jennifer H Wang
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF NEW YORK MELLON TRUST CO
vs DEBTOR
Docket 40
Debtor(s):
Ella Mae Pairs Represented By Philomena N Nzegge
Movant(s):
Bank of New York Mellon Trust Represented By
Christina J Khil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U S. BANK NATIONAL ASSOCIATION
vs DEBTOR
Docket 42
Tentative Ruling for 1/28/20:
Appearances required. At the 1/7/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
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present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Luis Mercado Represented By Rebecca Tomilowitz
Joint Debtor(s):
Maria Luisa Mercado Represented By Rebecca Tomilowitz
Movant(s):
U.S. Bank National Association as Represented By
Ashish R Rawat Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that Debtor as the owner of the property is competent to provide an opinion as to its valuee, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Pro Se
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 34
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued at Movant's request to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
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present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ignacio Martinez Represented By Rebecca Tomilowitz
Movant(s):
Lakeview Loan Servicing LLC, and Represented By
Christina J Khil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING, INC.
vs DEBTOR
Docket 69
Tentative Ruling for 1/28/20 (same as for 12/17/19):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 72).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alexander Dela Cruz Del Rosario Represented By
Sevan Gorginian
Joint Debtor(s):
Marie Chita-Linda Vergara Del Represented By Sevan Gorginian
Movant(s):
Select Portfolio Servicing, Inc. as Represented By
10:00 AM
Trustee(s):
Josephine E Salmon
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 33
Tentative Ruling for 1/28/20 (same as for 12/17/19 and 10/29/19): Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maricela Correa Contreras Represented By Sunita N Sood
Movant(s):
JPMorgan Chase Bank, National Represented By
Merdaud Jafarnia Lamont R Richardson
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 54
Debtor(s):
Jennifer Johanna Haas Represented By Caroline S Kim
Movant(s):
JPMorgan Chase Bank, National Represented By
Megan E Lees Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BROKER SOLUTIONS, INC.
vs DEBTOR
Docket 28
Tentative Ruling for 1/28/20 (same as for 12/10/19):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dollicia Heath Represented By Axel H Richter
Movant(s):
Broker Solutions, Inc. dba New Represented By Christina J Khil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
MECHANICS BANK
vs DEBTOR
Docket 30
Debtor(s):
Miguel Angel Jimenez Represented By Cynthia Grande
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 41
Tentative Ruling for 1/28/20 (same as for 1/14/20, 12/10/19): Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 43).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Richard Simmons Represented By
D Justin Harelik
Movant(s):
Lakeview Loan Servicing, LLC by Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
11:00 AM
Docket 255
Approve the Chapter 7 Trustee's final report; overrule Debtor's objection (dkt. 254) for the reasons stated in calendar no. 2 (1/28/20 at 11:00 a.m.); and allow the Chapter 7 Trustee $30,102.50 in fees (but limit payment to
$16,950.34, see dkt. 255, PDF p.15) and $79.11 in expenses, for a total of
$17,029.45. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janice Rene Haynes Pro Se
Trustee(s):
Timothy Yoo (TR) Represented By Lindsey L Smith Jeffrey L Sumpter
11:00 AM
[Filed by Levene, Neale, Bender, Yoo & Brill, LLP]
Docket 251
Allow Levene, Neale, Bender, Yoo & Brill LLP $129,788.50 in fees (but limit payment to $73,082.29 per Trustee's report, see dkt. 255, PDF p.15) and
$8,996.53 in expenses, for a total of $82,078.82. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
This Court has reveiwed the fee application, Debtor's Memorandum In Objection To Application For Payment Of Final Fees And/Or Expenses (dkt. 254), and the Chapter 7 Trustee's reply (dkt. 260). This Court is not persuaded by Debtor's objections for the following reasons.
Debtor lacks standing
Based on the filed claims, as summarized in the Trustee's final report (dkt.256, at PDF pp.3-4), even if this Court were to sustain Debtor's objections and allow $0 for Trustee and all professionals, the claims against the bankruptcy estate still would exceed the funds available. Therefore Debtor has not established that she has any pecuniary interest, or any other cognizable stake, in how much or how little is awarded to Trustee and his professionals. Debtor lacks standing to object to their fees.
Debtor's assertions are barred by the law of the case/preclusion principles Debtor objects that she should have been permitted to dismiss her
bankruptcy case and (Dkt.254, p.6:19-22) but that issue has already been
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litigated and decided against Debtor including on appeals. Debtor ignores this and other binding rulings of this Court. Her assertions of wrongdoing by Trustee ignore the fact that this Court has ruling in their favor, and those rulings are final.
Debtor's factual allegations and legal contentions not only lack support: they are contrary to the record in this case
The background is that Debtor apparently was given bad advice by a non-attorney to file this bankruptcy case, in an attempt to block the Internal Revenue Service ("IRS") and/or other creditors from pursuing their remedies. In any event (whether through bad advice or for some other reason), Debtor attempted to claim a homestead exemption in property that was not her homestead, and when that failed she sought to have this Court dismiss this bankruptcy case without compensating Trustee/the bankruptcy estate for the expenses Debtor had caused them to incur (as of that time).
In other words, Debtor sought to have it both ways. She attempted to gain the benefits of bankruptcy (the automatic stay that held her creditors at bay) without the burdens (complying with the homestead laws, and paying administrative expenses).
Trustee and this Court attempted to explain these things to Debtor, and encouraged her to obtain advice from any capable bankruptcy attorney so as not to continue making matters worse. Instead, Debtor has continued throughout this case to make factual allegations that are contrary to the evidence before this Court and assert legal conclusions that are contrary to the law.
For example, this Court previously found that her assertions about living in the rental property lacked evidence, and in fact were contrary to the evidence before this Court, and her homestead exemption was legally unsupportable. Instead of accepting these things, Debtor drove up administrative expenses with frivolous motions for reconsideration and appeals.
Even now, Debtor repeatedly mis-quotes this Court in her objection, and mis-characterizes the attempts by Trustee and this Court to help her understand. For example, both Trustee and this Court attempted to explain that if Debtor had obtained good advice, and if Debtor's personal circumstances permitted her to move cities, then perhaps she could have moved into her rental property and claimed a homestead, either before filing
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this case or, if this case were to be dismissed, after that dismissal; but on the record presented she could not claim a homestead in this case nor could she have this case dismissed without at least paying administrative fees.
Likewise, if Debtor qualified for chapter 13 (including meeting the statutory requirement of having "regular income," 11 U.S.C. 109(e)), then perhaps she could move to convert her case, pay the chapter 7 administrative expenses over time, and pay her other creditors enough to keep her rental property.
But Debtor cherry picks the portions of those explanations that she likes and ignores the rest. For example, she mis-quotes this Court as having supposedly assured her that she could convert her case to chapter 13 and could "move back into her house, and claim an exemption." Dkt.254, pp.6:22-7:2 & 8:22-23. That is false.
Conclusion
For each of the foregoing alternative reasons, this Court is not persuaded by Debtor's objection. Rather than attempting to re-litigate issues that have already been decided against her and that have always lacked merit, Debtor is encouraged to move on with her life, and to use her intelligence and skills for more productive purposes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janice Rene Haynes Pro Se
Movant(s):
Timothy Yoo (TR) Represented By Lindsey L Smith Jeffrey L Sumpter
11:00 AM
Trustee(s):
Timothy Yoo (TR) Represented By Lindsey L Smith Jeffrey L Sumpter
11:00 AM
Adv#: 2:19-01491 Lee v. Hsu
Docket 1
Appearances required.
Preliminary issues
Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to
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liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Diana C Lee Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01499 Kok v. Hsu
Docket 1
Appearances required.
Preliminary issues
Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to
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liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shin Lin Hsu Pro Se
Plaintiff(s):
Ching Chen Kok Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20
Docket 1
NONE LISTED -
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
11:00 AM
Adv#: 2:19-01181 Elissa D. Miller, Chapter 7 Trustee v. NANO
(3) Recovery of Avoided Transfer [11 U.S.C. section 550]; (4) Declaratory Relief; and (5) Turnover [11 U.S.C. section 542] fr. 8/20/19, 10/29/19
Docket 1
Tentative Ruling for 1/28/20:
Continue to 3/31/20 at 11:00 a.m. at the request of the parties (see adv. dkt. 8). Appearances are not required on 1/28/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Continue to 1/28/20 at 11:00 a.m. at the request of the parties (see adv. dkt. 7). Appearances are not required on 10/29/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 8/20/19:
Continue to 10/29/19 at 11:00 a.m. at the requested of the parties (see adv. dkt. 6). Appearances are not required on 8/20/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rima Adam Nano Represented By
G Marshall Hann
Defendant(s):
ADMON NANO Represented By Gary A Starre
Plaintiff(s):
Elissa D. Miller, Chapter 7 Trustee Represented By
Jeremy Faith Noreen A Madoyan Anna Landa
Trustee(s):
Elissa Miller (TR) Represented By Noreen A Madoyan
1:00 PM
Docket 93
NONE LISTED -
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 49
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
1:00 PM
Docket 5
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Monthly operating reports ("MORs")
Debtor's MORs have been filed late, and they appear to show unauthorized adequate protection payments (see dkt.68, pp.15, 29) and unpaid US Trustee fees (id., p.30). Why?
Cash collateral
Debtor's initial status report (dkt.27, at PDF pp.3-5) stated that there was no immediate need to obtain authorization for use of cash collateral because Debtor has no employees or operations. Debtor's latest status report (dkt.60, p.3:9-20) sugests that productive negotiations have taken place with the creditor holding an interest in cash collateral and that Debtor intends to self-calendar a motion approving the use of cash collateral for 2/4/20. What is the latest status of those matters?
Employing broker and filing sale motion
Debtor is directed to address the status of its plans to employ a real estate broker, sell its properties (11 U.S.C. 363(b) & (f)). Those things typically are "first day" motions. But as of this continued status conference it will have been two months after the petition date and those matters are not on the calendar. Why not?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 2/4/20 at 1:00 p.m. No written status
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report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor (see dkt. 21, excusing debtor's appearance).
Current issues
Has Debtor ceased all operations?
Debtor's status report gives the impression, but does not quite state, that Debtor is not conducting any business operations at this time (dkt. 27, p. 3). Debtor is directed to confirm this, or disclose if that is not so, at the hearing.
Budget motion
Debtor's status report states that a budget motion is not required by the presiding judge's procedures. Dkt. 27, p.5. That is wrong (see posted Procedures, available at cacb.uscourts.gov), but the tentative ruling is to excuse this requirement with a caution to counsel not to mis-state the applicable procedures.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20. Debtor is directed to appear in person, through its designated representative.
1:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
1:00 PM
Docket 1
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current issues
This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 3/6/20 (see dkt. 70 extending deadline from 1/3/20) using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m. Brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
1:00 PM
Current issues
Application to employ Danning Gill Diamond & Kollitz, LLP (the "Firm") (dkt. 27); Statement of disinterestedness (dkt. 28); Supplemental declaration (dkt. 32); Order setting hearing on application (dkt. 44) (the "Order Setting Hearing"); 2d Supp. (dkt.58); 3d Supp. (dkt. 66)
Grant Application, but disapprove paragraph 10 of the attorney-client agreement as against the bankruptcy estate (see dkt. 27, Ex. 1).
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 1/3/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/5/19:
Appearances required by proposed counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
1:00 PM
Current issues
Motion for authority to obtain post-petition financing (dkt. 35, 36, 37) (the "Finance Motion"); NVSI, Inc.'s opposition & evidentiary objections (dkt. 46, 47), Debtor's reply (dkt. 53-57)
Grant, on the terms set forth in the reply (dkt.53). Overrule the evidentiary objections of NVSI (dkt.47) to the Livingston decl. (dkt.35,
pp.30-35), except to the limited extent set forth below. Specifically, overrule entirely (except as limitations conceded in Debtor's Response) the evidentiary objections to the following para./exhibits to the Livingston decl.:
7, 10, 14, 15, 18, 20, 22 & Ex.6, 25, 29, 30, 31 & Ex.3, 35, 36. 37;
and overrule the objections to the following paragraphs except as noted:
27, except as to what Mr. Livingston believes NVSI would agree to;
33, except as provided in Debtor's response (dkt.57, p.13:11-20); and
17 & 23 (the testimony regarding settlement negotiations), as to which the tentative ruling is to admit it for the limited purposes set forth in the Response - rebuttal of NVSI's allegations as to Debtor's motives (see dkt.57,pp.6:17-27 & 9:8-19) - to the extent, if any, that such allegations are relevant.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Application to employ Danning Gill Diamond & Kollitz, LLP (the "Firm") (dkt. 27); Statement of disinterestedness (dkt. 28); Supplemental declaration (dkt. 32); Order setting hearing on application (dkt. 44) (the "Order Setting Hearing"); 2d Supp. (dkt.58)
Continue to the same date and time as the continued status conference (see below), per the Firm's second supplement (dkt.58).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
1:00 PM
Plan/Disclosure Statement*: file by 1/3/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 11/12/19 at 1:00 p.m., concurrent with other matters in this case. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Budget motion
Debtor's status report states that it has not filed a budget motion because it is not required by the presiding judge's procedures. Dkt. 23, p.3. Judge Bason's posted procedures (available at cacb.uscourts.gov) Section
VII.G provide that budget motions are mandatory in all chapter 11 cases. The tentative ruling is to set a deadline of 9/30/19 to file and serve a budget motion.
Settlement Discussions
The Debtor should be prepared to provide this Court with an update on the status of any settlement discussions with the existing lienholder.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
1:00 PM
Plan/Disclosure Statement*: file by 1/3/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 11/12/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
Docket 6
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current issues
Status report
This Court's oral ruling at the 12/17/19 hearing directed Debtor to file a status report no later than 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Debtor is cautioned that failure to file status reports in future (when ordered) may result in adverse consequences.
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/10/20 at 1:00 p.m., brief status report due 2/25/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s)
1:00 PM
themselves.
Current issues N/A
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
12/10/19
Docket 14
Tentative Ruling for 1/28/20:
Dismiss this case, with a direction to Debtor's counsel to assure completeness of the record by addressing the issue in item "(1)(a)" below, on pain of being held in contempt of this Court. See 11 U.S.C. 105(a).
Appearances are not required.
Current issues
Proposed order re untimely service of bar date order
In numerous prior tentative rulings (reproduced below) and at prior hearings this Court has directed Debtor's counsel to lodge a proposed order memorializing that this Court is excusing the untimely servicing of the bar date order. See also section "(2)(a)" of this tentative ruling, below. As of the drafting of this tentative ruling, such an order still has not been lodged. The tentative ruling is that, if Debtor's counsel fails to lodge an appropriate proposed order by 1/31/20 then this Court will impose coercive sanctions of
$10 per day until such an order is lodged.
Debtor's Second Amended Plan ("Plan," dkt. 98) and Disclosure Statement (dkt. 97), and the State Bank of India's Comments (dkt. 100)
The proposed Plan is not remotely feasible, given Debtor's long history of postpetition under-performance. Compare November MOR (dkt.96), p.1 ($977.10 balance in DIP account, after all receipts and disbursements since petition date) and id. p.15 (net loss on accrual basis) and December MOR (dkt. 100), p.1 ($531.15 balance in DIP account, after all receipts and disbursements since petition date) and id. p.15 (net gain on accrual basis), with Plan Ex.C (dkt.98 at PDF p.12) (projecting $5,000 disposable income per month).
Debtor's Plan is also internally inconsistent, and inconsistent with filed
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claims. It promises (dkt.98, p.3) a fixed dividend of 5% to general unsecured creditors ("GUCs"), but Exhibit A calculates that GUCs will received 2% of their claims. Dkt.98 at PDF p.10. Debtor's Plan, Exhibit A, also provides that the entire claim of the Franchise Tax Board ("FTB") is a priority claim under Section 507(a), but the FTB's Proof of Claim 2-2 states that not all of its claim is a priority claim.
In sum, Debtor has not demonstrated any realistic hope of a successful reorganization. The tentative ruling is to dismiss this case, because conversion would not result in any distribution to GUCs in view of the lien of Bank of India. See 11 U.S.C. 1112. See also dkt.100 (statement by Bank in favor of dismissal).
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18: not timely served, see dkt. 24, 35 & 41, but the tentative ruling is that no new bar date needs to be set because of the substantial time after the bar date with no party in interest having asserted prejudice and/or seeking to have an untimely claim allowed. Debtor is directed to lodge a proposed order memorializing that, for the foregoing reasons, this Court is excusing the untimely servicing of the bar date order.
Plan/Disclosure Statement*: See above.
Continued status conference: N/A
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Continue as set forth below. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues
Proposed order re untimely service of bar date order
In the tentative ruling for the 9/24/19 hearing, this Court directed Debtor to lodge a proposed order memorializing that this Court is excusing the untimely servicing of the bar date order. As of the drafting of this tentative ruling, no such order has been lodged. Why not?
Debtor is directed to lodge a proposed order within 7 days of this status conference as set forth in Section (2)(a) below.
Debtor's MORs
On the one hand, Debtor's latest MOR (dkt.94) continues to show that Debtor is current on adequate protection payments, and so far as this Court is aware Debtor is otherwise in compliance with DIP obligations. On the other hand, Debtor's hopes of increasing its income appear to be elusive.
Debtor's September MOR (dkt. 93) shows a small increase in Debtor's general account (under $4,000 increase) (id., p.1) and a slightly larger decrease in the payroll account (just over $5,000 decrease) (id., p.4).
Debtor's October MOR (dkt. 94) shows a small loss in the general account (just under $2,000 decrease) and in the payroll account (just over $400 decrease). In addition, Debtor has offered various explanations during this case about why Debtor expects to turn the corner in the near future, but then any (minor) profits in one month appear to be offset by losses the next month, and Debtor's latest explanations (dkt.94, at PDF p.18) are unreadable.
The parties should be prepared to address whether this Court should fix deadlines for Debtor to file a proposed plan and disclosure statement with a realistic possibility of confirmation, and whether failure to meet any such deadlines should result in dismissal or conversion of this bankruptcy case.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18: not timely served, see dkt. 24, 35 & 41, but the tentative ruling is that no new bar date needs to be set because of the substantial time after the bar date with no party in interest having asserted prejudice and/or seeking to have an untimely claim allowed. Debtor is directed to lodge a proposed order memorializing that, for the foregoing reasons, this Court is excusing the untimely servicing of the bar date order.
Plan/Disclosure Statement*: TBD.
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Continued status conference: 2/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Continue as set forth below, subject to lodging the proposed order indicated below. Appearances are not required on 9/24/19.
Current issues
It appears from a review of the August MOR (dkt. 91) that the Debtor's sales have increased and operations are (barely) profitable, with hopes of future increases in profitability. The tentative ruling is that Debtor needs to establish a longer track record of profitability before any proposed plan could be shown to be feasible, and therefore this Court should continue this Status Conference without setting a deadline to file a proposed plan and disclosure statement.
Deadlines/dates. This case was filed on 8/2/18.
Bar date: 12/11/18: not timely served, see dkt. 24, 35 & 41, but the tentative ruling is that no new bar date needs to be set because of the substantial time after the bar date with no party in interest having asserted prejudice and/or seeking to have an untimely claim allowed. Debtor is directed to lodge a proposed order memorializing that, for the foregoing reasons, this Court is excusing the untimely servicing of the bar date order.
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/10/19 at 1:00 p.m. No written status report required.
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*Warning: special procedures apply (see order setting initial status
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Newark Special Technologies, Inc. Represented By
Joseph L Pittera
1:00 PM
Docket 42
Tentative Ruling for 1/28/20:
Appearances required.
Current issues
Debtors' Disclosure Statement (dkt. 123) and chapter 11 Plan of reorganization (dkt. 124)
The tentative ruling is to set a deadline of 2/4/20 for Debtors to file corrected bankruptcy Schedules I&J, a declaration of postpetition income and expenses, a corrected and "blacklined" Disclosure Statement, and a corrected and "blacklined" Plan, addressing the following issues:
Debtors' net income calculations are very confusing Debtors' net income calculations are confusing for three reasons.
First, bankruptcy Schedules I and J (filed both as part of the Plan documents and separately) are supposed to reflect income and expenses as of the petition date, not later dates. For later dates, Debtors should have used this Court's local form declaration of postpetition income and expenses. Using the wrong forms is confusing and misleading.
Second, it appears from this Court's notes of the hearing on 7/30/19 that Debtors moved out of their Locust Avenue duplex at some point, so they are now renting out both units (and meanwile they are themselves renting their living space for $1,000/mo.); but the Plan and Disclosure Statement do not make this clear. In addition, Debtors appear to list income from three renters - what space is the extra renter occupying, given that the property is a duplex not a triplex? Specifically, amended Schedule I, line 8a, lists
$1,600/mo. income (tenant #1), and line 8h and Ex.A list two more tenants paying a total of $3,445/mo. (tenants #2&3). Is this accurate?
Third, Debtors' mortgage obligation does not appear to be included either in their calculation of net income from their rental property (amended
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bankruptcy Schedule I, dkt.122, at PDF pp.29-30, line 8a & Ex.A) or in their expenses (Schedule J, line 20a, dkt.122, at PDF p.31). In one or another of those places, they should have included their mortgage expense of $2,480.18 for principal and interest (dkt.122, at PDF p.30).
That error is balanced out by the fact that the Plan proposes to pay that amount. But the correct way to show this would have been to file an accurate declaration of postpetition income and expenses and then, in the Disclosure Statement, adjust Debtors' net income by backing out whatever mortgage was included in the declaration of postpetition income and expenses. Exhibit C-1 to the Disclosure Statement has a line to make such adjustments.
The Plan in its current form is infeasible by $325 on the Effective Date
Debtors' cash flow statement (dkt.123, Ex.C) shows a negative balance on the effective date: it gives the impression that the Plan is infeasible because Debtors would not be able to make the mandatory $325 payment to the UST on the effective date (see 11 USC 1129(a)(12)). Debtors are directed to address whether they will have sufficient cash on hand to make this payment.
The Plan does not comply with 11 USC 1129(a)(9)
Debtors propose to pay the IRS's claim over a period of 60 months, beginning on the proposed 4/1/20 effective date; but section 1129(a)(9) requires that the IRS's claim be paid in full within 5 years of the order for relief (i.e. 5 years from 4/10/19, or by 4/10/24).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Plan/Disclosure Statement*: The tentative ruling is to set a deadline of 2/4/20 for Debtors to file (BUT NOT SERVE) an amended Plan and Disclosure Statement correcting the foregoing issues, with manual "blacklining" showing all changes, which this Court will review prior to the continued status conference.
Continued status conference: 2/28/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
Docket 20
Please see the tentative ruling for the adversary status conference (calendar no. 10, 1/28/20 at 1:00 p.m.).
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
DOES 1-10 Pro Se
Movant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
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Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
for violations of the home ownership and equity protection act; 3. Unfair practices act under California Civil Code section 17200; 4. Breach of fiduciary duty; and 5. Declaratory relief
fr. 9/24/19, 11/5/19
Docket 1
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
DOES 1-10 Pro Se
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
1:00 PM
Docket 18
- NONE LISTED -
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Docket 29
- NONE LISTED -
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
Movant(s):
Universal Health Foundation Represented By Gary Kurtz
1:00 PM
Docket 27
- NONE LISTED -
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
Movant(s):
Universal Health Foundation Represented By Gary Kurtz
1:00 PM
Docket 1
Debtor(s):
Universal Health Foundation Represented By Gary Kurtz
1:00 PM
Adv#: 2:19-01243 Mazakoda, Inc. v. Melamed et al
fr. 10/1/19, 11/5/19, 12/10/19
Docket 1
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Defendant(s):
Edmond Melamed Represented By Michael Jay Berger
Rozita Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
Plaintiff(s):
Mazakoda, Inc. Represented By Scott E Gizer
1:00 PM
11/12/19, 12/10/19
Docket 7
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current Issues
Now that the settlement with Mazakoda, Inc. has been approved (see dkt. 126, and see calendar no. 15, 1/28/20 at 1:00 p.m.), it appears appropriate to move forward with a proposed Plan and Disclosure Statement, as set forth below, and continue this status conference to a date after those documents are filed. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: file by 1/31/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/3/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current Issues
Plan/Disclosure Statement See below.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: file by 1/31/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current Issues
Law offices of Michael J. Berger's second interim fee application (dkt. 113, 114), no opposition is on file
Allow $11,475 in fees and $175 in expenses, for a total of $11,650.
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Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/10/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current Issues
Settlement of Mazakoda's Inc.'s Claim
Debtors and Mazakoda have each reported a tentative settlement of their disputes (dkt.104, and adv.no. 2:19-ap-01243-NB, adv.dkt.8), and this status conference has been continued before in anticipation of such settlement (see dkt.106). But as of the preparation of this tentative ruling the docket does not reflect any motion to approve a settlement or other resolution. What is the status of the parties' attempted settlement, and what action should this Court take?
Deadlines/dates. This case was filed on 10/22/18.
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Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/10/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances are not required on 9/24/19.
Current Issues
(c) Settlement of Mazakoda's Inc.'s Claim
Debtors state (dkt.104) that they have engaged in settlement discussions with Mazakoda regarding its claim and are in the process of memorializing their agreement. The tentative ruling is to continue this matter to the date set forth below to allow time for the parties to finalize and obtain approval of any settlement.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Plan/Disclosure Statement*: TBD.
Continued status conference: 11/26/19 at 1:00 p.m. Brief status report due 11/12/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
1:00 PM
GOLDMAN SACHS BANK USA
vs DEBTOR
Docket 25
Tentative Ruling for 1/28/20:
Please see tentative ruling for status conference (calendar no. 18, 1/28/20 at 1:00 p.m.).
Tenative Ruling for 12/17/19:
Please see tentative ruling for status conference (calendar no. 10, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/2/19:
Please see tentative ruling for status conference (calendar no. 2, 12/2/19 at 10:00 a.m.).
Tentative Ruling for 11/5/19:
Please see tentative ruling for status conference (calendar no. 12, 11/5/19 at 1:00 p.m.).
[Prior Tentative Ruling incorporated into final order, dkt. 39]
Debtor(s):
South Street Brentwood, LLC Represented By Michael Jay Berger
1:00 PM
Movant(s):
Goldman Sachs Bank USA Represented By Daniel H Slate
Anthony J Napolitano
1:00 PM
Docket 4
Tentative Ruling for 1/28/20:
Appearances required.
Current issues
Goldman Sachs' Motion for relief from stay (dkt. 25-28), Debtor's opposition (dkt. 31), Goldman Sachs' reply (dkt. 32, 33), adequate protection order (dkt. 39), Debtor's supplemental briefs (dkt. 47,57), Goldman Sachs' supplemental briefs (dkt. 49-51, 67-68), orders (dkt. 72, 79), status report (dkt.83)
This Court's order setting today's hearing (dkt.79, para.4) requires evidence "of efforts to arrange for takeout financing." The declarations filed by Debtor (dkt.83) address the status of plan check meetings with the city, but nothing about any efforts to obtain takeout financing.
What is the status of those efforts? What remedies should this Court impose?
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (dkt. 21; timely served, dkt. 23)
Procedures order: dkt. 3 (timely served, dkt. 11)
Plan/Disclosure Statement*: TBD
Continued status conference: If the foregoing issues are resolved, the tentative ruling is to set a continued status conference for 3/31/20 at 1:00 p.m. Brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Goldman Sachs' Motion for relief from stay (dkt. 25, 26, 27, 28), Debtor's opposition (dkt. 31), Goldman Sachs' reply (dkt. 32, 33), adequate protection order (dkt. 39), Debtor's supplemental brief (dkt. 47), Goldman Sachs' supplemental reply (dkt. 59, 50, 51), stipulation to continue hearing (dkt. 53), Debtor's supplemental opposition (dkt. 57), Goldman Sachs' supplemental reply (dkt. 67, 68), order (dkt. 72)
At the hearing on 12/2/19, this Court granted Goldman Sachs' motion for relief from stay in part, such that the stay will continue in force and effect only through 2/28/20, but set some discovery-related deadlines and continued this hearing to address any discovery disputes. If there are no disputes that need to be resolved at this time, the tentative ruling is to continue this matter to the same time as the continued status conference (see below).
Law office of Michael J. Berger's first interim fee application (dkt. 58), no opposition is on file
Grant the application and authorize fees of $19,559 and costs of
$374.20, for a total award of $19,933.20.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (dkt. 21; timely served, dkt. 23)
Procedures order: dkt. 3 (timely served, dkt. 11)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/28/20 at 1:00 p.m. Brief status report due 1/14/20.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/2/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). NOTE: Due to the specially-set nature of this hearing and scheduling conflicts, Judge Bason will be appearing by telephone.
Current issues
Goldman Sachs' Motion for relief from stay (dkt. 25, 26, 27, 28), Debtor's opposition (dkt. 31), Goldman Sachs' reply (dkt. 32, 33), adequate protection order (dkt. 39), Debtor's supplemental brief (dkt. 47), Goldman Sachs' supplemental reply (dkt. 59, 50, 51), stipulation to continue hearing (dkt. 53), Debtor's supplemental opposition (dkt. 57), Goldman Sachs' supplemental reply (dkt. 67, 68)
The tentative ruling is to modify and condition the automatic stay, under 11 U.S.C. 362(d)(1) and (2), such that the stay will continue in force and effect only through 2/28/20, which will allow debtor a final opportunity to obtain the anticipated construction permits within the time frame it current projects and several additional weeks to secure its anticipated post-petition financing.
This Court acknowledges that Debtor appears to be making incremental progress towards paying off Goldman Sachs and restructuring its finances. But this Court is also mindful that (a) Goldman Sachs' lien has been in default since 12/2018; (b) Debtor has already benefitted from five months of stay protection since the 6/25/19 petition date; (c) based on a review of Goldman Sachs' recent appraisal (dkt. 68), its interest in the
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property is only protected by a minimal equity cushion; (d) Debtor's progress to date has fallen short of its projections; and (e) although Debtor has been making payments equivalent to the non-default interest, the parties have not briefed whether default interest is allowable, and the risk that it is allowable makes further delays substantially more likely to be detrimental to Goldman Sachs and other creditors.
Proposed order: Goldman Sachs is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (dkt. 21; timely served, dkt. 23)
Procedures order: dkt. 3 (timely served, dkt. 11)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/17/19 at 1:00 p.m. concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/5/19:
Appearances are not required on 11/5/19.
Current issues
Budget Motion (dkt. 30), Goldman Sachs Bank USA's (Goldman Sachs") opposition (dkt. 34), Stipulation re budget motion (dkt. 41, 42) ("Stipulation")
Grant, subject to the terms of the Stipulation.
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Proposed orders: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Goldman Sachs' Motion for relief from stay (dkt. 25, 26, 27, 28), debtor's opposition (dkt. 31), Goldman Sachs' reply (dkt. 32, 33), adequate protection order (dkt. 39), debtor's supplemental brief (dkt. 47), Goldman Sachs' supplemental reply (dkt. 59, 50, 51)
Continued to 12/2/19 at 10:00 a.m., per stipulation (dkt. 53) and order thereon.
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (dkt. 21; timely served, dkt. 23)
Procedures order: dkt. 3 (timely served, dkt. 11)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/2/19 at 10:00 a.m., no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances are not required on 10/29/19.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (timely served, dkt.23).
Plan/Disclosure Statement*: N/A (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures
1:00 PM
at a later time).
Continued status conference: 11/5/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/30/19:
Appearances required by counsel for the debtor and by Debtor's principal.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: N/A (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
1:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
South Street Brentwood, LLC Represented By Michael Jay Berger
1:00 PM
Docket 475
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
TCF EQUIPMENT FINANCE, a Represented By
Raffi Khatchadourian Christopher D Crowell
1:00 PM
Docket 486
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20
Docket 1
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 63
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
1:00 PM
BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By Simon Aron
1:00 PM
fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19
Docket 19
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
1:00 PM
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
1:00 PM
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is
1:00 PM
specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
1:00 PM
Docket 1
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
1:00 PM
Docket 53
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues noted in this Court's order setting this hearing (dkt. 56), including whether there has been sufficient compliance with this Court's procedures for reconsideration, what disposition Debtor contemplates for Debtor's various properties, and the treatment of claims purportedly secured by those properties.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By
Edmond Richard McGuire Stella A Havkin
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
8/20/19, 9/17/19, 10/15/19, 10/29/19, 12/10/19
Docket 5
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the United States Trustee ("UST") to convert, dismiss, or appoint a Chapter 11 trustee (the "UST Motion", dkt. 76)
Debtor's counsel is directed to address (i) the status of his efforts re determining the amount of tax claims and (ii) whether Debtor intends to proceeds with a structured dismissal as contemplated by this Court at the 12/10/19 hearing.
Deadlines/dates. This case was filed on 12/17/18.
Bar date: 7/24/19 (not timely served but excused, dkt. 120)
Plan/Disclosure Statement*: N/A
Continued status conference: if this case is not dismissed by then, or a continued status conference is not otherwise mooted, set a continued status conference for 3/31/20 at 2:00 p.m., with no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Debtor's counsel final fee application (dkt. 149)
Allow Zolkin Talerico LLP $153,269.00 in fees and $2,009.07 in expenses, for a total of $155,278.07. The tentative ruling is to authorize payment of those dollar amounts pro rata with other administrative claimants from Debtor's remaining cash - i.e., in accordance with the Bankruptcy Code's priority scheme - pursuant to the procedures set forth below.
Motion of the United States Trustee ("UST") to convert, dismiss, or appoint a Chapter 11 trustee (the "UST Motion", dkt. 76)
The tentative ruling is to authorize a structured dismissal of this case, contingent on distribution of all remaining assets (funds) in accordance with the distribution priorities of the Bankruptcy Code. In furtherance of such a distribution, the tentative ruling is to set a deadline of 12/31/19 for Debtor to file and serve a notice of its proposed distributions and any other proposed terms for a structured dismissal, and set a deadline of 14 days after service via US mail for any objections (i.e., 11 days plus 3 additional days for service via US mail per Rule 9006, Fed. R. Bankr. P., so that if Debtor wishes this matter can be noticed on a "negative notice" basis and possibly concluded before the end of the calendar year). Absent any objections, the tentative ruling is that Debtor could file a declaration of no response and lodge a proposed order granting the UST's motion on the terms proposed by Debtor.
Deadlines/dates. This case was filed on 12/17/18.
Bar date: 7/24/19 (not timely served but excused, dkt. 120)
Plan/Disclosure Statement*: N/A
Continued status conference: if this case is not dismissed by then, or a continued status conference is not otherwise mooted, set a continued status conference for 1/28/20 at 2:00 p.m., with no written status report required.
*Warning: special procedures apply (see order setting initial status
2:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior Tentative Rulings omitted]
Debtor(s):
Jackies Cookie Connection LLC Represented By
Derrick Talerico Marlee E Sherman Michael S Kogan David B Zolkin
2:00 PM
Docket 93
Please see the tentative ruling for the status conference (calendar no. 4, 1/28/20 at 2:00 p.m.).
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
2:00 PM
Docket 51
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/28/20 at 2:00 p.m.).
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 6, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 11/5/19:
Please see the tentative ruling for status conference (calendar no. 3, 11/5/19 at 2:00 p.m.).
Tentative Ruling for 10/29/19:
Appearances required. Deny the (belated) motion re cash collateral (docket no. 51) and only authorize Debtor to use funds to pay the following items in the proposed budget (dkt.51, Ex."A" "1", at p.22):
non-insider payroll, payroll taxes, benefits, and payroll service,
consultants whose employment has been authorized by written order of this Court,
insurance,
Hanmi Bank adequate protection payments equal to regular monthly payments of principal and interest - not any "loan fees,"
property repair and maintenance,
Office expense and supplies, postage, and shipping,
Permits, property taxes, and licenses,
telecommunications,
utilities.
The tentative ruling is that all other expenses are not adequately
2:00 PM
explained and justified. For example, the proposed budget includes $108,222 (approximately 2/3 of the total expenses) for "Taxi Vouchers and tokens" plus
$3,155/mo. for "Equipment rental and maintenance," $3,412/mo. for "Management Fees," and $5,784/mo. for "Facility cost (rent utilities)." How can any creditors or this Court assess whether those things are "ordinary course" without some explanation? See 11 U.S.C. 363(b).
Has Debtor historically been in the business of providing taxi vouchers to low-income persons to facilitate employment, medical visits, and food? If so, why was this not explained in more detail in the initial status conference report? See dkt.11. Are those services paid for out of the grants that Debtor receives? Is there any protection of the bankruptcy estate against misuse of such a large amount of transfers? Is the budget for those things consistent with past practices and/or with the expenses of other nonprofits that provide similar services? See In re Dant & Russell, Inc., 853 F.2d 700 (9th Cir. 1988).
In addition, as to those expenditures that are approved, the tentative ruling is not to approve section "8" of the proposed stipulation with Hanmi Bank (dkt. 51, Ex.A). In that section Debtor purports to waive rights under 11
U.S.C. 364(d) and 506(c), but there is no showing why that would be appropriate and it might be detrimental to creditors. The tentative ruling is, instead, to require that Debtor provide at least 72 hours' advance notice of any proposed expenditure that Debtor believes would qualify for reimbursement under section 506(c), absent exigent circumstances that make such advance notice impossible. In other respects, the tentative ruling is to authorize the use of cash collateral as provided in the stipulation, but subject to the conditions set forth below.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
2:00 PM
Timing. Lodge the proposed order within 7 days after the
hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
2:00 PM
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their
2:00 PM
disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
2:00 PM
Docket 1
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
2:00 PM
for Entry of an Order Approving Post-Petition Financing from Pacific Mariculture, LLC
Docket 47
Please see the tentative ruling for the status conference (calendar no. 10, 1/28/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Management Pro Tem, LLC to Assist the Chief Restructuring Officer
Docket 48
Please see the tentative ruling for the status conference (calendar no. 10, 1/28/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 49
Please see the tentative ruling for the status conference (calendar no. 10, 1/28/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 50
Please see the tentative ruling for the status conference (calendar no. 10, 1/28/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 51
Please see the tentative ruling for the status conference (calendar no. 10, 1/28/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 31
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
1/14/20
Docket 43
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
fr. 12/17/19, 1/14/20
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Business Solutions, Inc., et. al. Be Consolidated and Tried Together fr. 1/14/20
Docket 2
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
Glenn J. Chaffin Pro Se
Movant(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
2:00 PM
1/14/20
Docket
332
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20
Docket
422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20
Docket 428
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
2:00 PM
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18, 1/30/18, 4/9/19; 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19, 9/24/19, 11/12/19, 12/17/19,
1/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C. Vanderhoof Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
2:00 PM
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/7/19, 1/14/20
Docket 80
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
2:00 PM
Movant(s):
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
10:00 AM
CHALET PROPERTIES III LLC
vs DEBTOR
Docket 40
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's late filed response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Purisima Tan Ramos Represented By Scott Kosner
Movant(s):
Chalet Properties III LLC Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 75
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Wilmington Trust, National Represented By Robert P Zahradka Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 46
Debtor(s):
Adam Loy Thompson Represented By Aalok Sikand
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO CAPITAL FINANCE, LLC
vs DEBTOR
Docket 26
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
10:00 AM
then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the
10:00 AM
apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan C. Fuentes Pro Se
Movant(s):
Wells Fargo Capital Finance, LLC Represented By
Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
GARY R. ADAMS, Trustee of the Gary R. Adams Revocable Living Trust
vs DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Service
In his opposition (dkt. 28), Debtor states that there was insufficient notice of the hearing. It is true that the motion papers were not served until January 14, 2020 (21 days before the hearing) (see dkt. 24, p.12), but Debtor's counsel timely filed an opposition and has not explained that Debtor has suffered any prejudice as a result of receiving 21 days' notice rather than 24 days' notice of the hearing. Therefore, the tentative ruling is to excuse the untimely service. See Rule 9006 (Fed.R.Bankr.P.).
Debtor's unauthorized receipt of ownership of the property, and apparent participation in a scheme to delay, hinder, and defraud creditors
As noted in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), an unauthorized transferree of property cannot modify a lienholder's rights. See id., citing In re Bousheri, Case No. 2:15-
bk-11345-NB, dkt. 79. So Debtor's only apparent choice is to refinance or sell the subject property, while meanwhile adequately protecting Movant's interest.
10:00 AM
First, Debtor has not proposed any such course of action. His
proposed chapter 13 plan (dkt.13) ignores this lien.
Second, Debtor's own self-reported income and expenses (dkt.10, pp.18-21) show that he has no cash flow from which to make adequate protection payments.
Third, the evidence is that Debtor's purported interest in the property (which he variously reports as either a 50% interest or a 100% interest) is only part of a scheme to hinder, delay, and defraud creditors. Debtor does not dispute that the purported to transfer to him was a "gift," so he paid nothing for that interest. Debtor also does not dispute the other factual allegations in Movant's papers about how the transfer was used to stop foreclosure.
For all of the foregoing reasons, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in
10:00 AM
section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Henry Lee Monday Jr. Represented By A Mina Tran
Movant(s):
Gary R. Adams, Trustee of the Gary Represented By
Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 9
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rosemarie Rodriguez Represented By Michael E Clark
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 15
Grant, subject to the following conditions, and also subject to any opposition at the hearing. Appearances required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Raul Gil Orozco Represented By Daniel King
Movant(s):
Raul Gil Orozco Represented By Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 5
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Margarita Martinez Represented By Jaime A Cuevas Jr.
Movant(s):
Margarita Martinez Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 16
Grant, subject to (1) any opposition at the hearing, (2) denial of attorney fees for appearing at the hearing as set forth below, and (3) the additional conditions set forth below. Appearances required.
No attorney fees: This Court presumes that counsel for Debtor will not charge any fees for appearing at this hearing, unless there is an opposition to the motion, because (a) the posted Procedures of Judge Bason permit these types of motions to be set on 14 days' notice with opposition papers due 5 calendar days before the hearing, but (b) counsel checked the box providing that the motion (dkt. 16) was being heard on regular notice with opposition due 14 days before the hearing when the motion was served 15 days before the hearing and (c) the amended motion (dkt. 21) was filed 13 days before the hearing. If counsel intends to charge any fees then the procedures must be followed to dispute this tentative ruling.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court
10:00 AM
will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria Hilda Flores Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rachel Cervantes Carrillo Represented By Axel H Richter
Movant(s):
Rachel Cervantes Carrillo Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUSTE, N.A.
vs DEBTOR
Docket 52
Debtor(s):
JC A Calso Represented By
Diane C Diane C McDowell
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 56
Debtor(s):
Jose Santana Figueroa Damian Represented By Onyinye N Anyama
Movant(s):
Nationstar Mortgage LLC as Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 28
Debtor(s):
Hoa Tieu Lee Represented By
Rex Tran
Movant(s):
JPMORGAN CHASE BANK, Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 33
Tentative Ruling for 2/4/20 (same as for 1/7/20):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Samson Fear Represented By Onyinye N Anyama
Movant(s):
Wells Fargo Bank, National Represented By Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 41
Tentative Ruling for 2/4/20:
Appearances required. This Court was persuaded to continue this matter to allow time for Debtor to make a $2,000 payment to Movant by January 15, 2020 and for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether Debtor timely made the payment described above, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
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To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tiresa Dunelle Ulufale Represented By Elena Steers
Movant(s):
The Bank of New York Mellon, et al Represented By
Alexander G Meissner Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
QUICKEN LOANS INC.
vs DEBTOR
Docket 27
Tentative Ruling for 2/4/20:
Appearances required.
At the 1/7/20 heraing this Court was persuaded to continue this matter for the parties to negotiate a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below, and permit Movant to add its attorney's fees and costs incurred in prosecuting this motion to the outstanding balance of the note as such fees and costs are allowed under applicable nonbankruptcy law. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling,
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thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sonia Loera Represented By
Ramiro Flores Munoz
Movant(s):
Quicken Loans Inc. Represented By Kelsey X Luu Josephine E Salmon
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ANTONIO DUARTE
vs DEBTOR
Docket 74
Tentative Ruling for 2/4/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 78, and supplemental declaration, dkt. 79).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 78).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nelson Enrique Gomez Represented By Maria C Hehr
Movant(s):
Antonio Duarte Represented By Barry L O'Connor
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
FREEDOM MORTGAGE CORPORATION
vs DEBTOR
Docket 32
Debtor(s):
Florenzia Vineyard Represented By Andy C Warshaw
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 29
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eduardo Lopez Represented By Leon D Bayer
Movant(s):
Sam S Leslie (TR) Represented By Carolyn A Dye
Trustee(s):
Sam S Leslie (TR) Represented By Carolyn A Dye
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Docket 5
This case has now been dismissed (dkt.14). Debtor has not filed any response to this Court's order to show cause (dkt.5) why he should not be barred from being a debtor in any future bankruptcy case for a period of 180 days. This Court previously imposed a 180-day bar (dkt.5, last paragraph). The tentative ruling is to issue an order that such bar is not lifted, and will continue for 180 days from the date of dismissal of this case. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paul Albert Satterlee Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19
Docket 43
Tentative Ruling for 2/4/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties should be prepared to address the discovery, if any, received from Debtor (see dkt. 277). The tentative ruling is to continue this matter to 4/7/20 at 11:00 a.m. at the request of the parties. Id.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/9/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether the sale of the property has closed, in light of this Court's order granting the Chapter 7 Trustee's sale motion (dkt. 161).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
Continue this hearing to 7/9/19 at 11:00 a.m. to complete the sale of the property underlying the parties' disputes (see dkt. 86, 94, 98, 100, 114, 135, 136). Appearances are not required on 5/21/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/9/19:
Continue this hearing to 5/21/19 at 11:00 a.m. to complete the sale of the property underlying the parties' disputes (see dkt. 86, 94, 98, 100, 114, 135, 136). Appearances are not required on 4/9/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/16/18 (same as for 7/17/18):
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the 7/17/18 and 6/12/18 hearings, this Court continued the matter for the parties to explore various options. There is no tentative ruling, but the parties should be prepared to inform the Court about the status of this case.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/12/18:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in the papers (dkt. 43, 56, 57).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
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Adv#: 2:19-01219 Ramsaur v. Graff
fr. 1/7/20
Docket 18
Tentative Ruling for 2/4/20:
Please see the tentative ruling for the status conference (calendar no. 5, 2/4/20 at 11:00 a.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 8, 1/7/20 at 11:00 a.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 7, 12/10/19 at 11:00 a.m.)
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Pro Se
Movant(s):
Brett Ramsaur Represented By Brett Ramsaur Brett Ramsaur
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Plaintiff(s):
Brett Ramsaur Represented By Brett Ramsaur
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Adv#: 2:19-01219 Ramsaur v. Graff
fr. 9/24/19, 11/26/19, 12/10/19, 1/7/20
Docket 1
Tentative Ruling for 2/4/20:
Grant Plaintiff's motion for a default judgment, in the amount of $20,239.94 consisting of $12,646.75 in principal, $1,234.44 in interest, and $6,358.75 in attorney fees and costs (see adv. dkt. 21 and 23). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant Plaintiff's motion for a default judgment in part, as set forth below, and continue that motion and this status conference to 2/4/20 at 11:00 a.m.
Appearances are not required on 1/7/20.
Grant in the interim amount of $18,867.44 consisting of $12,646.75 in principal, $1,234.44 in interest, and $4,986.25 in attorney fees and costs to date (see supp. brief, adv.dkt.21), with a deadline of 1/14/20 for Plaintiff to file and serve a declaration supporting his request for additional fees and costs
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(see adv.dkt.21, p.5, n.7), and deadlines of 1/21/20 for any opposition to those additional charges and 1/30/20 for any reply.
The tentative ruling is to defer issuing any order on the motion until the final dollar amount is determined.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 12/10/19:
Continue to 1/7/20 at 11:00 a.m. to address the following issues. Appearances are not required on 12/10/19.
Reasons:
Plaintiff seeks $19,099.40 consisting of "$12,646.75 in principal,
$1,466.40 in interest, and $4,986.25 in attorneys’ fees and costs." Adv.dkt.17, p.11:6-7.
Interest
The retainer letter, attached to the Complaint (adv.dkt.1, Ex. 1 at PDF p.9), does not mention any interest rate, so there is a question what rate to apply (see below). In addition, there are no calculations showing what interest rate has been applied and how it has been calculated.
The tentative ruling is that this Court has limited discretion to determine whether the pre-judgment interest rate should be governed California or federal law, but that the state of the law on this issue is somewhat unclear.
See In re Zenovic, 2017 WL 431400, *8 (9th Cir. BAP 2017) (in nondischargeability case when State law issues predominated, there was no State court judgment, and there was danger of forum shopping, bankruptcy court had discretion to award prejudgment interest at Federal or State law rate, and did not abuse discretion by choosing State rate); but see In re Hamilton, 584 B.R. 310, 324 (9th Cir. BAP 2018) (citing In re Zenovic for proposition that when there is no prior State court judgment, federal law governs pre-and postjudgment interest).
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Attorney fees
The retainer letter, attached to the Complaint (adv.dkt.1, Ex. 1 at PDF
p.9), includes an attorney fee clause. But Plaintiff's motion does not include daily time records evidencing that Plaintiff is entitled to the fees and costs he seeks (as distinguished from his claim for damages, which is supported by daily time records).
Additional briefing
The deadline for Plaintiff to file additional papers addressing the above issues is 12/31/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
The tentative ruling is to continue this Status Conference as set forth below, at which time this Court can assess what progress has been made on any motion for a default judgment, based on this Court's reviewed of Plaintiff's unilateral status report (adv. dkt. 12) and the other filed documents and records in this adversary proceeding. Plaintiff is directed in future to use the mandatory form of status report (available at www.cacb.uscourts.gov) - among other things, it has a question regarding consent to this Court's entry of final orders. Appearances are not required on 9/24/19.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
Preliminary Issues: continuance
Note: This Court will hold a Status Conference concurrent with any other hearing in this adversary proceeding (including any self-calendared hearings).
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Standard issues
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
Deadlines: This adversary proceeding has been pending since 7/12/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 11/12/19.
Continued status conference: 11/26/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
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Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Pro Se
Plaintiff(s):
Brett Ramsaur Represented By Brett Ramsaur
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 6
Appearances required by counsel for the debtor and by Debtor(s) themselves.
Current issues
Employment application (dkt.21): Debtor fails to disclose the source of funds used to pay proposed bankruptcy counsel (id., p.8). Nor is there any disclosure of either the payment or the source of funds in the SOFA line 16 (dkt.19, at PDF p.47). Nor has counsel filed the required disclosure under Rule 2016 (Fed.R.Bankr.P.). See Nat. Form B2030.
The employment application lists costs for photocopying and other expenses that appear to exceed the applicable guidelines (see dkt.21, at PDF p.20). The tentative ruling is to disapprove those proposed charges.
Late payment charges can only run from when fees and costs are authorized and directed to be paid (as ordered by this Court) (see id., at PDF p.21). Pursuant to the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) any employment order will supersede the provisions in the employment application that would otherwise provide for an attorney lien (impermissible because it would create a conflict of interest). Under the same Procedures, any arbitration provision is subject to this Court's initial jurisdiction to review any fee disputes (id., at PDF p.21).
The tentative ruling is to set a deadline of 2/7/20 to file and serve documents correcting the foregoing deficiencies. If those documents are amendments to previously filed documents, all changes must be shown by "blacklining."
Budget motion (dkt.20): SchJ line 17 (reproduced at dkt.20, PDF p.12) shows two cars, but Debtor's bankruptcy Schedules A/B and D (dkt.19 at PDF pp.4-5 & 15-16) show four cars (all under-water). What is Debtor's intent regarding these cars, and why does Debtor need so many?
SchJ line 19 (reprodcued at dkt.20, at PDF p.12) shows $500/mo. of "support" payments "to mother-in-law and sister-in-law." Are these truly
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"support" payments within the meaning of 11 U.S.C. 101(14A)(A)(i) & (B) and 11 U.S.C. 707(b)(2)(A)(ii)(II) (incorporated by 11 U.S.C. 1129(a)(15) and 1325(b)(2)(A)(i)), and can they be deducted properly from Debtor's income?
Substantial equity in properties alleged to have been fraudulently transferred. Based on SOFA line 13 (dkt.19 at PDF p.46), certain creditors allege that Debtor fraudulently transferred interests properties at 319 N. Sunset Ave., La Puente, CA ("Sunset") and 1545 Cambria St, Los Angeles, CA 90017, where Debtor resides ("Cambria"), as gifts to his wife and children, perhaps to evade payment of a judgment in those creditors' lawsuit asserting that Debtor's rental property was uninhabitable. See SOFA line 9 (dkt.19, at PDF p.45). Based on Bankruptcy Schedule D (dkt.19, at PDF pp.15-16) and Debtor's Status Report (dkt.18, p.A-2, lines 15-25), there appears to be over
$300,000 of equity in Sunset and over $1.1 million in unencumbered equity in Cambria. Debtor cannot and does not claim any exemption in these properties that he allegedly fraudulently transferred. See Bankruptcy Schedule C (dkt.19, at PDF pp.13-14).
Debtor is directed to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfer. All parties are directed to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 3 (timely served, dkt. 9)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 237
Please see the tentative ruling for the status conference (Calendar no. 4, 2/4/20 at 1:00 p.m.).
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
Movant(s):
Broadway Advisors, LLC Pro Se
1:00 PM
Docket 236
Please see the tentative ruling for the status conference (Calendar no. 4, 2/4/20 at 1:00 p.m.).
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
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4/22/19, 5/14/19, 6/11/19, 7/30/19, 9/24/19, 10/15/19,
11/12/19, 12/17/19
Docket 1
Appearances are not required on 2/4/20.
Current issues
Final Fee Applications of Brutzkus Gubner (dkt. 236) and Broadway Advisors, LLC (dkt. 237).
Grant the Brutzkus Gubner application for $934,356.50 in fees and
$15,296.79 in expenses, for a total award of $949,653.29.
Grant the Broadway Advisors application for $290,647.50 in fees and
$96.20 in expenses, for a total award of $290,743.70.
Proposed orders: Applicants are directed to lodge proposed orders via LOU within 7 days after the hearing date. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 1/25/19. A Plan (dkt. 208) was confirmed 12/17/19 (dkt. 232). A post-confirmation status conference is set for 3/3/20 at 1:00 p.m., brief written status report due 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
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Docket 141
Please see the tentative ruling for the status conference (Calendar no. 7, 2/4/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Jennifer M Liu Pro Se
1:00 PM
Docket 138
Please see the tentative ruling for the status conference (Calendar no. 7, 2/4/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
Docket 1
Tentative Ruling for 2/4/20:
Appearances are not required on 2/4/20.
Current issues
Berger fee application (dkt. 138).
Grant in part and deny in part as follows. Applicant seeks an interim award of $33,341 in fees and $417.30 in expenses, for a total award of
$33,758.30.
Applicant's time records identify $9,846 in fees for services performed related to "Claims Administration and Objections" (dkt. 138, Ex. 3). The bulk of the fees requested in this category relate to Debtor's objections to proofs of claim 6, 9, 10, 12, 13, & 14 (dkt. 89, 90, 91, 92, 93 & 99). This Court is not persuaded that the fees billed for bringing these objections are entirely reasonable.
First, the bulk of the objections contain identical, "boilerplate" summaries of law, with very limited facts and argument. This is reinforced by the fact that the application divides time equally among these objections. See dkt. 138, Ex. 3, p.2.
Second, the objections fail to cite proper grounds to disallow the various claims under 11 U.S.C. 502(b), pursuant to well established authority, and Debtor did not cite or attempt to distinguish such authority. This Court's orders overruled each of Debtor's claim objections. See dkt.127 et seq.
For the foregoing reasons, this Court finds it appropriate to reduce the fees by $2,000 for this category. Accordingly, this Court will allow fees in the amount of $31,341 and $417.30 in expenses, for a total award of $31,758.30.
Jennifer M. Liu fee application (dkt. 141).
Allow Jennifer M. Liu $11,650 in fees and $160 in expenses, for a total
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of $11,810.00.
Proposed orders: Applicants are directed to lodge separate proposed orders via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19) (dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19) (dkt. 16)
Plan/Disclosure Statement*: 2/18/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
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(2) Prohibiting Utility Companies From Altering, Refusing or Discontinuing Services, (3) Approving the Debtors Proposed Procedures for Resolving Adequate Assurance Requests, and (4) Granting Related Relief
fr. 1/23/20
Docket 21
Tentative Ruling for 2/4/20:
Please see the tentative ruling for the status conference (calendar no. 10, 2/4/20 at 1:00 p.m.).
Tentative Ruling for 1/23/20:
Please see the tentative ruling for the status conference (calendar no. 1, 1/23/20 at 8:00 a.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
on Permanent Use of Cash Collateral; and (4) After Hearing, Authorizing Permanent Use of Cash Collateral
fr. 1/23/20
Docket 19
Tentative Ruling for 2/4/20:
Please see the tentative ruling for the status conference (calendar no. 10, 2/4/20 at 1:00 p.m.).
Tentative Ruling for 1/23/20:
Please see the tentative ruling for the status conference (calendar no. 1, 1/23/20 at 8:00 a.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 1
Tentative Ruling for 2/4/20
Appearances required by counsel for Debtor (as orally ruled at the last status conference, Debtor's principals need not appear because they appeared at that status conference).
Current issues
Cash collateral motion (dkt. 19), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24), interim order (dkt. 39).
There is no tentative ruling, the parties should be prepared to update this Court on whether JPMorgan Chase and Fundation Group will consent to the use of their cash collateral.
Utility motion (dkt. 21), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24),no opposition is on file.
Grant the utility motion on a final basis.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Service of order setting principal status conference
This Court's order setting principal status conference and setting various procedures (the "Procedures Order," dkt. 5) required Debtor to serve that order on all parties in interest and file a proof of service at least 14 days before the principal status conference. Debtor's proof of service states that the Procedures Order was only served on the UST, secured creditors and the
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twenty largest unsecured creditors (dkt. 11).
The tentative ruling is to set a deadline of 2/7/20 for Debtor to file and serve a Notice, with a copy of the Procedures Order attached as an exhibit, informing all parties in interest that "Debtor failed to serve the Procedures Order on all parties in interest as directed by the Bankruptcy Court, which may have prejudiced some parties. The Bankruptcy Court has directed Debtor to serve this Notice, with a copy of the Procedures Order, on all parties in interest, both to inform all parties of the procedures in the Procedures Order and so that any party who was prejudiced by the lack of earlier service has an opportunity to seek any appropriate relief."
In addition, Debtor is cautioned that failure to comply with this Court's orders may result in adverse consequences.
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (see section "(1)(c)" above).
Plan/Disclosure Statement*: file by 5/15/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges,"
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"Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address whether this Court should grant the relief requested in Debtor's emergency first-day motions (dkt. 19, 20, 21, 23, 25 & 26) and this Court's "Order Granting Oral Request for Emergency Hearing Pursuant to Local Bankruptcy Rule 9075-1(a) and Setting Hearing on Shortened Notice" (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
fr. 1/28/20
Docket 53
Tentative Ruling for 2/4/20:
There is no tentative ruling but the parties should be prepared to address whether, in light of the evidence provided in Debtor's supplemental reply (dkt. 63), this Court should reconsider its finding that Debtor's failure to appear in proper prosecution of this chapter 13 case was "willful," and, therefore, whether this Court should reconsider the 180-day bar under 11 U.S.C. 109(g) (1). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues noted in this Court's order setting this hearing (dkt. 56), including whether there has been sufficient compliance with this Court's procedures for reconsideration, what disposition Debtor contemplates for Debtor's various properties, and the treatment of claims purportedly secured by those properties.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By
Edmond Richard McGuire Stella A Havkin
Trustee(s):
Kathy A Dockery (TR) Pro Se
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5/23/17, 7/11/17, 8/22/17, 10/03/17, 1/23/18,
1/30/18, 3/20/18, 5/1/18, 11/6/18, 1/29/19, 2/26/19,
4/9/18, 5/21/19, 11/5/19
Docket 7
Debtor(s):
Cloudbreak Entertainment, Inc. Represented By Jeremy V Richards Peter J Crosby
2:00 PM
fr. 12/10/19, 1/7/20
Docket 38
Tentative Ruling for 2/4/20:
Appearances required.
Current issues
Employees' Motion for Contempt (dkt. 38)
This matter has been continued a number of times to allow time for discovery and to address further the sanctions issues. On 1/24/19, Employees submitted the declaration of William G. Short (dkt. 81, the "Short Decl.").
The tentative ruling is that the Short Decl. does not include sufficient evidence to meet the usual standards for compensatory sanctions, including for example (a) evidence justifying a billing rate of $500/hr. (e.g., any board certifications, a summary of relevant experience in the legal specialt(ies) at issue, evidence of the customary compensation charged by comparably skilled practitioners in similar cases) or (b) a breakdown of what fees and expenses would not have been incurred but for the failure of Debtor and/or its agents to respond to discovery requests in accordance with the applicable rules (e.g., the Small Decl. includes charges for deposition preparation but, although it is true that Debtor initially failed to produce its person most knowledgeable, there is no explanation why the deposition preparation was not helpful when Debtor did eventually produce its person most knowledgeable for deposition). Cf. 11 U.S.C. 330(a)(3)&(4) (standards applicable to asserted administrative expenses).
The tentative ruling is to continue this matter to 2/18/20 at 11:00 a.m., to be concurrent with another scheduled matter in this case, with a deadline of 2/10/20 for Employees to file and serve their second supplemental declaration, a deadline of 2/14/20 at noon for any opposition papers to be
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filed and served by Ms. Chao and/or Debtor, and any further responses orally at the continued hearing.
Outstanding discovery issues?
The parties are directed to address whether there are any outstanding discovery issues that need to be resolved. The tentative ruling is to hear any such issues, at least on an initial basis, at this hearing, consistent with the posted Procedures of Judge Bason (www.cacb.uscourts.gov) regarding discovery disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required. This matter was continued to this date to allow time for the parties to meet and confer, conduct further discovery, and then at this hearing to address further the sanctions issues. On 12/23/19, the Creditors conducted the requested 2004 examination. The parties are directed to appear to provide this Court with an update on the status of their dispute.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances required. The tentative ruling is to grant the motion and award compensatory sanctions (dkt.38), for the reasons set forth therein and in creditors' reply (dkt.55) to the only opposition papers - the declaration of Lynn
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Chao (dkt.42). See also dkt.33, 40 (Order compelling production), dkt.43 (Order to Show Cause). The tentative ruling is also to grant the motion and award coercive sanctions, in an escalating dollar amount to be addressed at the hearing. The tentative ruling is to deny any request for an order directing Google to do anything, for lack of sufficient notice and cited authority/analysis. The tentative ruling is also to continue the motion to a future date (to be determined), which will provide an opportunity (a) to monitor future compliance/non-compliance, (b) to impose additional coercive sanctions or terminate those sanctions as appropriate, and (c) address any other appropriate relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Movant(s):
Wei Dong Represented By
Mark Fang
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
Docket 13
Revised Tentative Ruling for 2/4/20:
Appearances required. Mr. Mack is directed to appear and bring government issued photo identification.
Current issues
Background
On 11/5/19, Alero Mack, Daniel Fernandez, and Booker Chism (collectively, the "Petitioning Creditors") filed an involuntary petition against alleged debtor Joel Spivak.
On 11/8/19, this Court issued an "Order (1) Regarding Dismissal of Involuntary Petition, or Other Remedies, (2) Directing Al Mack, Daniel Fernandez, Booker Chism, and Joel Spivak to Appear and Show Cause Why This Court Should Not Impose Sanctions, and (3) Authorizing Hearing on Shortened Time on Any Motion to Annul the Automatic Stay or For Other Remedies (dkt. 3) (the "First OSC"). The First OSC detailed the history of a pre-filing bar the Honorable Thomas B. Donovan imposed against Mr. Mack and Mr. Chism in connection with a different involuntary case (id.), and directed the Petitioning Creditors to appear and show cause at a hearing on 12/17/19 to address why this Court should not impose sanctions against them "(a) for failing to comply with the Pre-Filing Order (as to Mr. Mack and Mr.
Chism), and (b) for their apparent participation in a scheme to abuse the bankruptcy system" as set forth in more detail therein (id.).
The First OSC also directed Mr. Spivak to appear and show cause to address, among other things, "why this Court should not impose sanctions against him, based on any participation in a scheme to abuse the bankruptcy system " (id.).
The Petitioning Creditors and Mr. Spivak did not appear at the hearing on 12/17/19.
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OSC re sanctions and pre-filing bar against Alero Mack (dkt. 13)
(the "Mack OSC")
On 1/2/20, this Court issued an order:
finding Mr. Mack in contempt of this Court,
directing Mr. Mack to appear at a continued show cause hearing on 2/4/20 at 2:00 p.m.
fining Mr. Mack punitive sanctions of $300 for failing to appear at the initial OSC hearing on 12/17/19
imposing coercive sanctions of $10/day for each day after 1/16/20 that Mr. Mack continues to fail to respond to the First OSC,
directing Mr. Mack to pay the foregoing fines prior to the 2/4/20 hearing and to bring a copy of the receipt to the hearing,
providing notice that this Court will determine at the 2/4/20 hearing whether to impose additional or different sanctions,
imposing a pre-filing bar against Mr. Mack, and
directing Mr. Mack to bring a government issued photo identification to the 2/4/20 hearing.
Dkt. 13.
This Court has reviewed the declaration of Alero Mack filed on 1/16/20 (dkt. 25) (the "Mack Declaration").
Among other things, Mr. Mack states that he did not appear at the First OSC hearing because "I knew the property was being prepared to be foreclosed on by our group so that ALL of the outstanding debts could be paid, I believed that I didn’t have to show at the December 17, 2019 hearing and that the case would be DISMISSED." (dkt. 25, para. 12). Mr. Mack also states that he was not aware that Judge Donovan’s pre-filing bar prevented him from filing pleadings and documents relating to any involuntary petitions (id., para. 2).
The tentative ruling is that Mr. Mack has not provided an adequate explanation for failing to appear at the First OSC hearing or for his mistaken belief that the Pre-Filing Bar did not apply to involuntary petitions, because Mr. Mack’s intent is irrelevant, and his good faith is not a defense (unless coupled with reasonable interpretation of order, which this Court finds has not been satisfied). See In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003) (citation and internal quotations omitted) ("Because civil contempt serves a remedial purpose, it matters not with what intent the defendant did the prohibited act"); In re Count Liberty, LLC, 370 B.R. 259, 275 (Bankr. C.D. Cal. 2007) (citing
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cases).
Sanctions
Punitive sanctions
Pursuant to the Mack OSC, the tentative ruling is that Mr. Mack is fined
$300 in punitive sanctions for his failure to appear at the First OSC hearing on 12/17/19. Mr. Mack is directed to provide a copy of a receipt demonstrating that he has paid this fine in advance of the hearing.
Coercive sanctions
The Mack OSC also put Mr. Mack on notice that this Court would impose additional fines for each day after 1/16/20 that he failed to respond to the Mack OSC. Because Mr. Mack filed the Mack Declaration on 1/16/20, the tentative ruling is that no coercive sanctions will be imposed at this time.
Additional or different sanctions
This Court will determine at the hearing whether to impose additional or different sanctions.
Pre-Filing Bar
The Mack OSC imposed a pre-filing bar against Mr. Mack. This Court will determine at the hearing whether any grounds exist to lift the pre-filing bar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Joel Spivak Pro Se
2:00 PM
Docket 14
Revised Tentative Ruling for 2/4/20:
Appearances required. Mr. Fernandez is directed to appear and bring government issued photo identification.
Current issues
Background
On 11/5/19, Alero Mack, Daniel Fernandez, and Booker Chism (collectively, the "Petitioning Creditors") filed an involuntary petition against alleged debtor Joel Spivak.
On 11/8/19, this Court issued an "Order (1) Regarding Dismissal of Involuntary Petition, or Other Remedies, (2) Directing Al Mack, Daniel Fernandez, Booker Chism, and Joel Spivak to Appear and Show Cause Why This Court Should Not Impose Sanctions, and (3) Authorizing Hearing on Shortened Time on Any Motion to Annul the Automatic Stay or For Other Remedies (dkt. 3) (the "First OSC"). The First OSC detailed the history of a pre-filing bar the Honorable Thomas B. Donovan imposed against Mr. Mack and Mr. Chism in connection with a different involuntary case (id.), and directed the Petitioning Creditors to appear and show cause at a hearing on 12/17/19 to address why this Court should not impose sanctions against them "(a) for failing to comply with the Pre-Filing Order (as to Mr. Mack and Mr.
Chism), and (b) for their apparent participation in a scheme to abuse the bankruptcy system" as set forth in more detail therein (id.).
The First OSC also directed Mr. Spivak to appear and show cause to address, among other things, "why this Court should not impose sanctions against him, based on any participation in a scheme to abuse the bankruptcy system " (id.).
The Petitioning Creditors and Mr. Spivak did not appear at the hearing on 12/17/19.
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OSC re sanctions and pre-filing bar against Daniel Fernandez (dkt.
(the "Fernandez OSC")
On 1/2/20, this Court issued an order:
finding Mr. Fernandez in contempt of this Court,
directing Mr. Fernandez to appear at a continued show cause hearing on 2/4/20 at 2:00 p.m.
fining Mr. Fernandez punitive sanctions of $300 for failing to appear at the initial OSC hearing on 12/17/19
imposing coercive sanctions of $10/day for each day after 1/16/20 that Mr. Fernandez continues to fail to respond to the First OSC,
directing Mr. Fernandez to pay the foregoing fines prior to the 2/4/20 hearing and to bring a copy of the receipt to the hearing,
providing notice that this Court will determine at the 2/4/20 hearing whether to impose additional or different sanctions,
imposing a pre-filing bar against Mr. Fernandez, and
directing Mr. Fernandez to bring a government issued photo identification to the 2/4/20 hearing.
Dkt. 14.
This Court has reviewed the declaration of Daniel Fernandez filed on 1/16/20 (dkt. 26) (the "Fernandez Declaration").
Among other things, Mr. Fernandez states that he did not appear at the First OSC hearing because "I knew the property was being prepared to be foreclosed on by our group so that ALL of the outstanding debts could be paid, I believed that I didn’t have to show at the December 17, 2019 hearing and that the case would be DISMISSED." (dkt. 26, para. 11).
The tentative ruling is that Mr. Fernandez has not provided an adequate explanation for failing to appear at the First OSC hearing, because Mr. Fernandez’s intent is irrelevant, and his good faith is not a defense (unless coupled with reasonable interpretation of order, which this Court finds has not been satisfied). See In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003) (citation and internal quotations omitted) ("Because civil contempt serves a remedial purpose, it matters not with what intent the defendant did the prohibited act"); In re Count Liberty, LLC, 370 B.R. 259, 275 (Bankr. C.D. Cal. 2007) (citing cases).
Sanctions
Punitive sanctions
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Pursuant to the Fernandez OSC, the tentative ruling is that Mr.
Fernandez is fined $300 in punitive sanctions for his failure to appear at the First OSC hearing on 12/17/19. Mr. Fernandez is directed to provide a copy of a receipt demonstrating that he has paid this fine in advance of the hearing.
Coercive sanctions
The Fernandez OSC also put Mr. Fernandez on notice that this Court would impose additional fines for each day after 1/16/20 that he failed to respond to the Fernandez OSC. Because Mr. Fernandez filed the Fernandez Declaration on 1/16/20, the tentative ruling is that no coercive sanctions will be imposed at this time.
Additional or different sanctions
This Court will determine at the hearing whether to impose additional or different sanctions.
Pre-Filing Bar
The Fernandez OSC imposed a pre-filing bar against Mr. Fernandez. This Court will determine at the hearing whether any grounds exist to lift the pre-filing bar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Joel Spivak Pro Se
2:00 PM
Docket 15
Revised Tentative Ruling for 2/4/20:
Appearances required. Mr. Chism is directed to appear and bring government issued photo identification.
Current issues
Background
On 11/5/19, Alero Mack, Daniel Fernandez, and Booker Chism (collectively, the "Petitioning Creditors") filed an involuntary petition against alleged debtor Joel Spivak.
On 11/8/19, this Court issued an "Order (1) Regarding Dismissal of Involuntary Petition, or Other Remedies, (2) Directing Al Mack, Daniel Fernandez, Booker Chism, and Joel Spivak to Appear and Show Cause Why This Court Should Not Impose Sanctions, and (3) Authorizing Hearing on Shortened Time on Any Motion to Annul the Automatic Stay or For Other Remedies (dkt. 3) (the "First OSC"). The First OSC detailed the history of a pre-filing bar the Honorable Thomas B. Donovan imposed against Mr. Mack and Mr. Chism in connection with a different involuntary case (id.), and directed the Petitioning Creditors to appear and show cause at a hearing on 12/17/19 to address why this Court should not impose sanctions against them "(a) for failing to comply with the Pre-Filing Order (as to Mr. Mack and Mr.
Chism), and (b) for their apparent participation in a scheme to abuse the bankruptcy system" as set forth in more detail therein (id.).
The First OSC also directed Mr. Spivak to appear and show cause to address, among other things, "why this Court should not impose sanctions against him, based on any participation in a scheme to abuse the bankruptcy system " (id.).
The Petitioning Creditors and Mr. Spivak did not appear at the hearing on 12/17/19.
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OSC re sanctions and pre-filing bar against Booker Chism (dkt. 15)
(the "Chism OSC")
On 1/2/20, this Court issued an order:
finding Mr. Chism in contempt of this Court,
directing Mr. Chism to appear at a continued show cause hearing on 2/4/20 at 2:00 p.m.
fining Mr. Chism punitive sanctions of $300 for failing to appear at the initial OSC hearing on 12/17/19
imposing coercive sanctions of $10/day for each day after 1/16/20 that Mr. Chism continues to fail to respond to the First OSC,
directing Mr. Chism to pay the foregoing fines prior to the 2/4/20 hearing and to bring a copy of the receipt to the hearing,
providing notice that this Court will determine at the 2/4/20 hearing whether to impose additional or different sanctions,
imposing a pre-filing bar against Mr. Chism, and
directing Mr. Chism to bring a government issued photo identification to the 2/4/20 hearing.
Dkt. 15.
This Court has reviewed the declaration of Booker Chism filed on 1/16/20 (dkt. 27) (the "Chism Declaration").
Among other things, Mr. Chism states that he did not appear at the First OSC hearing because "I knew the property was being prepared to be foreclosed on by our group so that ALL of the outstanding debts could be paid, I believed that I didn’t have to show at the December 17, 2019 hearing and that the case would be DISMISSED." (dkt. 27, para. 11).
The tentative ruling is that Mr. Chism has not provided an adequate explanation for failing to appear at the First OSC hearing, because Mr.
Chism’s intent is irrelevant, and his good faith is not a defense (unless coupled with reasonable interpretation of order, which this Court finds has not been satisfied). See In re Dyer, 322 F.3d 1178, 1191 (9th Cir. 2003) (citation and internal quotations omitted) ("Because civil contempt serves a remedial purpose, it matters not with what intent the defendant did the prohibited act"); In re Count Liberty, LLC, 370 B.R. 259, 275 (Bankr. C.D. Cal. 2007) (citing cases).
Mr. Chism also states that he was not aware of the Pre-Filing Order or that it imposed a pre-filing bar against him (dkt. 27, para. 1-2). However, the certificate of service of Judge Donovan’s Pre-Filing Order (Case No. 2:14-
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bk-22340-TD, dkt. 11), reflects service of that order on Mr. Chism at the same address he listed for himself in the involuntary petition in that case (id., dkt. 1, p. 2).
The tentative ruling is that pursuant to the so-called "Mail-Box Rule," there is a presumption of proper notice which can only be rebutted by clear and convincing evidence of nonreceipt and Mr. Chism has not carried that burden to show that he did not receive notice of the Pre-Filing Order. In re Bucknum, 951 F.2d 204, 207 (9th Cir. 1991); see also In re Williams, 185
B.R. 598, 600 (9th Cir. BAP 1995) (A "bare declaration of non-receipt" is not sufficient to rebut the presumption").
Sanctions
Punitive sanctions
Pursuant to the Chism OSC, the tentative ruling is that Mr. Chism is fined $300 in punitive sanctions for his failure to appear at the First OSC hearing on 12/17/19. Mr. Chism is directed to provide a copy of a receipt demonstrating that he has paid this fine in advance of the hearing.
Coercive sanctions
The Chism OSC also put Mr. Chism on notice that this Court would impose additional fines for each day after 1/16/20 that he failed to respond to the Chism OSC. Because Mr. Chism filed the Chism Declaration on 1/16/20, the tentative ruling is that no coercive sanctions will be imposed at this time.
Additional or different sanctions
This Court will determine at the hearing whether to impose additional or different sanctions.
Pre-Filing Bar
The Chism OSC imposed a pre-filing bar against Mr. Chism. This Court will determine at the hearing whether any grounds exist to lift the pre- filing bar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 2/4/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Joel Spivak Pro Se
2:00 PM
Docket 19
Revised Tentative Ruling for 2/4/20:
Appearances required. Mr. Spivak is directed to appear and bring government issued photo identification.
Current issues
Background
On 11/5/19, Alero Mack, Daniel Fernandez, and Booker Chism (collectively, the "Petitioning Creditors") filed an involuntary petition against alleged debtor Joel Spivak.
On 11/8/19, this Court issued an "Order (1) Regarding Dismissal of Involuntary Petition, or Other Remedies, (2) Directing Al Mack, Daniel Fernandez, Booker Chism, and Joel Spivak to Appear and Show Cause Why This Court Should Not Impose Sanctions, and (3) Authorizing Hearing on Shortened Time on Any Motion to Annul the Automatic Stay or For Other Remedies (dkt. 3) (the "First OSC"). The First OSC detailed the history of a pre-filing bar the Honorable Thomas B. Donovan imposed against Mr. Mack and Mr. Chism in connection with a different involuntary case (id.), and directed the Petitioning Creditors to appear and show cause at a hearing on 12/17/19 to address why this Court should not impose sanctions against them "(a) for failing to comply with the Pre-Filing Order (as to Mr. Mack and Mr.
Chism), and (b) for their apparent participation in a scheme to abuse the bankruptcy system" as set forth in more detail therein (id.).
The First OSC also directed Mr. Spivak to appear and show cause to address, among other things, "why this Court should not impose sanctions against him, based on any participation in a scheme to abuse the bankruptcy system " (id.).
The Petitioning Creditors and Mr. Spivak did not appear at the hearing on 12/17/19.
2:00 PM
OSC re sanctions and pre-filing bar against alleged debtor Joel
Spivak (dkt. 19) (the "Spivak OSC")
On 1/2/20, this Court issued an order:
finding Mr. Spivak in contempt of this Court,
directing Mr. Spivak to appear at a continued show cause hearing on 2/4/20 at 2:00 p.m.
fining Mr. Spivak punitive sanctions of $300 for failing to appear at the initial OSC hearing on 12/17/19
imposing coercive sanctions of $10/day for each day after 1/16/20 that Mr. Spivak continues to fail to respond to the First OSC,
directing Mr. Spivak to pay the foregoing fines prior to the 2/4/20 hearing and to bring a copy of the receipt to the hearing,
providing notice that this Court will determine at the 2/4/20 hearing whether to impose additional or different sanctions,
imposing a pre-filing bar against Mr. Spivak, and
directing Mr. Spivak to bring a government issued photo identification to the 2/4/20 hearing.
Dkt. 19.
As of the preparation of this tentative ruling, Mr. Spivak has not responded to the Spivak OSC.
Sanctions
Punitive sanctions
Pursuant to the Spivak OSC, the tentative ruling is that Mr. Spivak is fined $300 in punitive sanctions for his failure to appear at the First OSC hearing on 12/17/19. Mr. Spivak is directed to provide a copy of a receipt demonstrating that he has paid this fine in advance of the hearing.
Coercive sanctions
The Spivak OSC also put Mr. Spivak on notice that this Court would impose additional fines for each day after 1/16/20 that he failed to respond to the Spivak OSC. Accordingly, the tentative ruling is to fine Mr. Spivak an additional $10 for each day after 1/16/20 that he has failed to respond (i.e.,
$180 as of the preparation of this tentative ruling on 2/3/20 [18 days @
$10/day = $180]) and will continue to incur coercive sanctions on a daily basis until he complies.
Additional or different sanctions
This Court will determine at the hearing whether to impose additional or different sanctions.
2:00 PM
Pre-Filing Bar
The Spivak OSC imposed a pre-filing bar against Mr. Spivak. This
Court will determine at the hearing whether any grounds exist to lift the pre- filing bar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Joel Spivak Pro Se
2:00 PM
Docket 64
- NONE LISTED -
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
2:00 PM
fr. 12/17/19, 1/14/20, 01/28/20
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20
Docket 43
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Business Solutions, Inc., et. al. Be Consolidated and Tried Together fr. 1/14/20, 01/28/20
Docket 2
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
Glenn J. Chaffin Pro Se
Movant(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim
2:00 PM
James A Dumas Jr
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20, 01/28/20
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20, 01/28/20
Docket 428
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20
Docket 332
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18, 1/30/18, 4/9/19; 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19, 9/24/19, 11/12/19, 12/17/19,
1/14/20, 01/28/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C. Vanderhoof Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
2:00 PM
Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/7/19, 1/14/20, 01/28/20
Docket 80
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
2:00 PM
Movant(s):
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20, 01/28/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
2:00 PM
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
10:00 AM
Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Cont'd hrg re: Motion for Dismissal and Other Related Sanctions Against Plaintiff Twisted Oliver Holdings, LLC fr. 01/02/20
Docket 22
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
10:00 AM
TIGRAN MOMDJIAN
vs DEBTOR
Docket 59
Appearances required. There is no tentative ruling, but the parties should be prepared to address whether Debtors have reached any agreement with the senior lienholder, who has been granted relief from the automatic stay (dkt.48), to delay its foreclosure proceedings, or whether for any other reason it would be appropriate to continue the automatic stay to prevent Movant, as junior lienholder, from protecting its rights by pursuing foreclosure as well.
See Debtors' response (dkt. 62) and Movant's reply (dkt.63).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Victor Emmanuel Cruz Santos Represented By Brad Weil
Joint Debtor(s):
Eustaquia Teresita Lozada Santos Represented By
Brad Weil
10:00 AM
Movant(s):
Tigran Momdjian Represented By James R Selth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 35
Debtor(s):
Magali Toribio Represented By Scott Kosner
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 29
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 31).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eduardo Alvarez Represented By William G Cort
Movant(s):
RoundPoint Mortgage Servicing Represented By
Erin M McCartney Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Martin Archer Jr. Represented By Stephen Parry
Movant(s):
Wilmington Savings fund society, Represented By
Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 55
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 64).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
William Smith Jr. Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Nancy L Lee Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
PNC BANK, NATIONAL ASSOC
vs DEBTOR
Docket 17
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no.
311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C.
10:00 AM
109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bianca C Amezcua Pro Se
Movant(s):
PNC Bank, National Association Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEL TORO LOAN SERVICING, INC.
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no.
311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
10:00 AM
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aaron Cerezo Pro Se
Movant(s):
Del Toro Loan Servicing, Inc. Represented By Amy E Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEL TORO LOAN SERVICING, INC.
vs DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including
10:00 AM
any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aaron Cerezo Pro Se
Movant(s):
Del Toro Loan Servicing, Inc. Represented By Amy E Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEL TORO LOAN SERVICING, INC.
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including
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any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aaron Cerezo Pro Se
Movant(s):
Del Toro Loan Servicing, Inc. Represented By Amy E Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-F
vs DEBTOR
Docket 13
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 18).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carol Ann Harris Represented By
Edmond Richard McGuire
Movant(s):
Ajax Mortgage Loan Trust 2018-F Represented By
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 32
Grant the relief provided below in Debtor's bankruptcy case - without prejudice to any automatic stay that might apply in Debtor's father's bankruptcy case, or any request for relief from any such stay. See dkt.34 (Debtor's response). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Cynthia Ann Alvarez Represented By Heather J Canning
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HYUNDAI LEASE TITLING TRUST
vs DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's Non- Opposition (dkt. 33)
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sasha Demovsky-Kapustyan Represented By Richard T Baum
Movant(s):
Hyundai Lease Titling Trust Represented By Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 23
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Sonia Lopez Represented By
Hasmik Jasmine Papian
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BMW BANK OF NORTH AMERICA
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
John Chu Represented By
Tina H Trinh
Movant(s):
BMW Bank of North America Represented By Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 32
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Artur Muradyan Represented By Aris Artounians
Movant(s):
Capital One Auto Finance, a division Represented By
Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SCHOOLSFIRST FEDERAL CREDIT UNION
vs DEBTOR
Docket 8
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Marianne Evette Villa Represented By Brian J Soo-Hoo
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
#17.00 [CASE DISMISSED ON 01/23/2020]
Hrg re: Motion for relief from stay [UD]
WESTERN PLAZA CAPITAL HOLDINGS, LLC
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State
10:00 AM
laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dong Min Kim Pro Se
10:00 AM
Movant(s):
Western Plaza Capital Holding, LLC Represented By
Ann Chang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DTLA PROPERTIES, INC.
vs DEBTOR
Docket 7
- NONE LISTED -
Debtor(s):
Universal Health Foundation Represented By Brandon J Anand
Movant(s):
DTLA Properties, Inc. Represented By Julian K Bach
10:00 AM
FRITZ J. FIRMAN
vs DEBTOR
Docket 21
Grant creditor Fritz J. Ferman's motion for relief from the automatic stay under 11 U.S.C. 362(d), and deny Debtors' motion to continue the automatic stay under 11 U.S.C. 362(c)(3), as provided below. Appearances are not required.
Proposed order: Creditor Ferman is directed to lodge proposed orders (one for each motion) via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Preliminary note
This motion for relief from the automatic stay, and Debtor's motion to continue the automatic stay, are intertwined. Accordingly, this Court is reviewing both of them, and the parties' filed papers relating to both of them, together in this tentative ruling.
The automatic stay does not apply
Grant the motion for relief from the automatic stay, and deny the motion to continue the stay, under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-18972-NB) was dismissed (on 10/29/19) within one year before this case was filed (on 1/13/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no.
2:11-bk-53730-NB, docket #40 (Memorandum Decision).
10:00 AM
In the alternative and in addition, the tentative ruling is to grant relief
from the automatic stay as follows.
Modification
Modify the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
Legal standard
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1).
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6)
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Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Debtors cite to the Sonnax factors in their opposition (dkt. 25 at PDF
pp.10-11). But those factors apply in the Second Circuit, not here in the Ninth Circuit. In any event, the Sonnax factors essentially parallel the Curtis factors. This Court will apply the Curtis factors.
Analysis
Based on the present record, the tentative ruling is that the Curtis factors weigh in favor of granting relief as set forth above. Most significantly, factors 1, 2, 7, 10 and 12 weigh in favor of granting Movant's motion.
Factors 1, 7 and 10: whether relief would result in a partial or complete resolution fo the issues; whether the litigation in another forum would prejudice the interests of other creditors; and the interests of judicial economy and the expeditious and economical determination of litigation for the parties
Debtor argues that punitive damages eventually will have to be determined by this Court, and that any award of punitive damages would dilute recoveries to other creditors. See dkt. 25 at PDF pp.12-13. The tentative ruling is that Debtor's argument is not persuasive.
First, punitive damages are subordinated to other chapter 7 claims.
See 11 U.S.C. 726(a)(4). Therefore, contrary to Debtors' argument, there is no showing that permitting the State Court litigation to proceed will do anything to reduce any dividend to Debtors' other creditors.
Second, although Debtors' arguments are not clear, perhaps they are
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anticipating having to re-litigate some issues in this Bankruptcy Court if Movant brings a nondischargeability action (under 11 U.S.C. 523(a)(2)(A) or another code section), based on the State Court Complaint's claims such as the third cause of action, for fraudulent misrepresentations, and they prayer for punitive damages. See dkt. 21, Ex. 1. But the State Court can address the elements of fraud and punitive damages, and generally its findings of fact and conclusions of law on those issues would have a preclusive effect in this bankruptcy case, so Debtors have not established that there would be any partial resolution of the issues in State Court, or any duplication of effort or waste of judicial resources.
To the contrary, the State Court litigation has already progressed at least to the point of attempted discovery, so it appears that denying relief from the automatic stay and forcing the parties to start over in this Bankruptcy Court would be a waste of judicial resources, and would undermine the expeditious and economical determination of litigation for the parties. The tentative ruling is that these considerations weigh in favor of granting relief from the automatic stay.
Factor 2: lack of any connection with or interference with the bankruptcy case
Debtor argues that permitting the State Court litigation to proceed would disrupt "this chapter 13 case." Dkt. 25 at PDF p.16, para.19.
The tentative ruling is that Debtor's argument is not persuasive. First, this is a chapter 7 case, not a chapter 13 case. Second, Debtor has not shown that granting relief from the automatic stay will disrupt this bankruptcy case at all.
The tentative ruling is that this factor weighs in favor of granting Movant's motion.
Factor 12: the impact of the automatic stay on the parties and the "balance of hurt"
Creditor Firman has presented evidence that Debtors' prior bankruptcy case and this present bankruptcy case have been filed on the eve of depositions, and have succeeded in delaying that discovery. Debtors have had a "breathing spell," and at this point the tentative ruling is that the automatic stay is unduly prejudicial to resolution of the parties' litigation, and that the balance of hurt tips in favor of granting relief from the automatic stay (if it applies).
Conclusion
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For the reasons set forth above, the tentative ruling is that the Curtis
factors weigh in favor of granting relief from the automatic stay, and that there is sufficient "cause" to grant the foregoing relief to proceed with the State Court litigation.
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Relief notwithstanding future bankruptcy cases
The tentative ruling is that the timing and effect of Debtors' two bankruptcy cases establish a prima facie showing of a scheme to hinder or delay creditor Ferman's litigation in State Court, and that it is appropriate to grant the following "in rem" relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
The tentative ruling is that the foregoing relief will not be affected by any future conversion of this case to chapter 13. This Court is not aware of any reason why any co-debtor stay (11 U.S.C. 1301(c)) should be accorded greater effect than the stay under 11 U.S.C. 362(a).
No attorney fees for Debtors' counsel
This Court presumes that Debtors' counsel will not charge any fees for the time spent on these motions, because counsel knew or should have known of Debtors' earlier bankruptcy case and knew or should have known of the 30 day deadline under 11 U.S.C. 362(c)(3), so all time spent seeking to continue the automatic stay and opposing relief from the automatic stay has been wasted time. If Debtors' counsel intends to charge any fees then the procedures must be followed to dispute this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Alan Javier Represented By Marc A Goldbach
Joint Debtor(s):
Jamie Pena Javier Represented By Marc A Goldbach
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Movant(s):
Fritz J. Firman Represented By Fritz J Firman
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
Docket 17
Please see the tentative ruling for calendar no. 19 (2/18/20 at 10:00 a.m.).
Debtor(s):
Robert Alan Javier Represented By Marc A Goldbach
Joint Debtor(s):
Jamie Pena Javier Represented By Marc A Goldbach
Movant(s):
Robert Alan Javier Represented By Marc A Goldbach Marc A Goldbach Marc A Goldbach Marc A Goldbach
Jamie Pena Javier Represented By Marc A Goldbach
Trustee(s):
Carolyn A Dye (TR) Pro Se
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Docket 8
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kenneth A Lindahl Represented By Carl Shaff II
Movant(s):
Kenneth A Lindahl Represented By Carl Shaff II
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 10
- NONE LISTED -
Debtor(s):
Edik Mangasarian Represented By Sevan Gorginian
Movant(s):
Edik Mangasarian Represented By Sevan Gorginian
Trustee(s):
Nancy K Curry (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 2/18/20:
This matter was continued to this date (a) to allow time for Debtor to substitute in new counsel and (b) for Debtor to determine whether she can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments. The tentative ruling is to set a deadline of 4/6/20 for Debtor to file and serve a motion seeking authorization for one of those methods of curing her defaults, to be self- calendared for hearing no later than 4/30/20 at 8:30 a.m. Meanwhile, the tentative ruling is to continue this hearing to 4/7/20 at 10:00 a.m.
Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that
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Debtor as the owner of the property is competent to provide an opinion as to its value, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Pro Se
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DLJ MORTGAGE CAPITAL, INC.
vs DEBTOR
Docket 141
Revised Tentative Ruling for 2/18/20:
Deny as moot based on the payoff of all liens, per the final settlement statement attached to the Trustee's status report (dkt.180, Ex.A), and alternatively . Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether Movant's claim has been satisfied in full from the sale of the 960 N. Tigertail Road property and whether there are any remaining issues for this
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Court to address.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Continue to 2/18/20 at 10:00 a.m. (see tentative ruling on Trustee's sale motion, 1/7/20 at 11:00 a.m., calendar no. 3). Appearances are not required on 1/7/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Peta Elizabeth Gorshel Represented By David S Hagen Christian T Kim
Movant(s):
DLJ Mortgage Capital, Inc. Represented By
Kelly M Kaufmann Merdaud Jafarnia
Trustee(s):
Carolyn A Dye (TR) Represented By Christian T Kim
10:00 AM
James A Dumas Jr
10:00 AM
fr. 06/11/19, 7/2/19; 08/06/19, 9/17/19, 10/15/19
NATIONAL MORTGAGE, LLC
vs DEBTOR
Docket 62
Tentative Ruling for 2/18/20 (same as for 10/15/19):
Appearances required. At the previous hearing, this Court was informed that the Chapter 13 Trustee had not yet received certain information requested from Movant. There is no tentative ruling, but the parties should be prepared to address (a) whether the Chapter 13 Trustee has received the information she requested, (b) whether the alleged arrears have been brought current and/or (c) whether some other disposition is appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/17/19:
Appearances required. At the previous hearing, Movant informed this Court that it had provided the Chapter 13 Trustee with a payoff statement and that the Chapter 13 Trustee required further accounting. There is no tentative ruling, but the parties should be prepared to address (a) the status of that further accounting, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/6/19:
Appearances required. At the previous hearing, the parties noted that another of Debtor's properties had been sold and that Movant's debt may be paid in full out of the proceeds. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/2/19:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
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Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 29
Tentative Ruling for 2/18/20:
This matter was continued to this date so that, if Debtor were not performing under the LMM trial period (see Order, dkt.42), Movant bring such non- performance to the attention of this Court (such as by filing and serving a declaration, or raising such non-performance at the hearing). The docket does not reflect any such non-performance, so the tentative ruling is to continue this hearing to 3/31/20 at 10:00 a.m. Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19 and 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether Debtor is performing under the LMM trial period (see Order, dkt.42).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Continue to 10/29/19 at 10:00 a.m. in view of Debtor's entry into the LMM program (see Order, dkt.42) and Debtor's status report (dkt.41). If Debtor is performing under the LMM trial period, and files a declaration saying so prior to the continued hearing, then this Court anticipates a further continuance of this hearing. Appearances are not required on 9/10/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for for 8/6/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Margarita Dolores Gonzalez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
QUICKEN LOANS, INC.
vs DEBTOR
Docket 29
Debtor(s):
Noemi Arroyo Represented By Jaime A Cuevas Jr.
Movant(s):
Quicken Loans Inc. Represented By
Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PEK EAN CHONG
vs DEBTOR
Docket 9
Revised Tentative Ruling for 2/18/20:
Grant, given the lack of any opposition as of the preparation of this tenative ruling (past the deadline for any opposition). Appearances are not required.
Tentative Ruling for 2/18/20:
Grant as provided below, subject to any timely opposition. Appearances required only if any timely opposition is filed (due 2/14/20 at noon, per dkt.12) - otherwise appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue,
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then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the
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apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Attorney fees
Movant requests that its attorney fees be allowed. The tentative ruling is that this Court will not express any view regarding any attorney fee request because (a) in any nonjudicial foreclosure action, attorney fee issues typically are not decided by a court (and in a judicial foreclosure it is the State Court, not this Bankruptcy Court, that would determine attorney fee issues), (b) a motion for relief from the automatic stay is not the proper vehicle to adjudicate attorney fees in this Bankruptcy Court, and (c) this hearing does not involve any claim objection or other proceeding that might properly present that issue for this Court's determination.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lisa Sharae Haney Pro Se
10:00 AM
Movant(s):
Pek Ean Chong Represented By Samuel H Park
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 84
Appearances required. The tentative ruling is to grant the motion, subject to
(1) Wells Fargo's conditional non-opposition (dkt.94), except that instead of Wells Fargo's suggested 90 day period the tentative ruling is to set a date of 5/19/20, (2) any other, persuasive opposition at the hearing, and (3) Debtor addressing the issues raised by this Court in its order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 86).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Thomas Michael Moore Represented By Eliza Ghanooni
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 23
Appearances required. The tentative ruling is to deny the motion, without prejudice, because according to Debtor's notice and proofs of service (dkt.27, 28), at least two secured creditors were served via U.S. mail on 2/13/20, not via overnight delivery or other expedited means, as required by this Court's order shortening time (dkt.25).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Isabel Teresa Albert Represented By Danny K Agai
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the parties' joint status report (dkt. 24) and the other filed documents and records in this involuntary bankruptcy case.
Current issues
Cynthia Cohen, Esq. and Theodore Sanos, Esq. ("Petitioning Creditors"), filed an involuntary petition against alleged debtor, Samini Cohen Spanos LLP, on 1/3/20. Non-petitioning partner Babak (Bobby) Samini filed a timely answer on 1/24/20 denying the Petitioning Creditors' allegation that the alleged debtor generally is not paying its debts as such debts become due (unless such debts are the subject of a bona fide dispute as to liability or amount) (dkt. 18). The tentative ruling is to continue this status conference to the time and place set forth below, to allow time for the parties to conduct discovery and start to address the above issue.
This Court also notes that Mr. Samini requests damages pursuant to 11 U.S.C. 303(i) (dkt. 18). The tentative ruling is that it is premature to set any discovery cut-off deadlines, or any other related deadlines, on this issue at this time (prior to a determination whether or not to issue an order for relief).
This Court also notes that Mr. Samini's Answer asserts various affirmative defenses, which appear either to constitute alleged grounds for dismissal (the first, second, and fourth affirmative defenses) or to be the same as the elements under 11 U.S.C. 303(h)(1) (the third affirmative defense). The tentative ruling is to bifurcate and defer the asserted affirmative defenses until after addressing the elements of section 303(h)(1).
Mediation
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Is there is any reason why this Court should not order the parties to
mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/25/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
The tentative ruling is to proceed toward trial on the elements of section 303(h)(1) simultaneous with any mediation. Pursuant to LBR
9021-1(b)(1)(B), Petitioning Creditors are directed to lodge a proposed order via LOU within 7 days after this status conference, attaching a copy of this tentative ruling and adopting the following dates/deadlines related to a trial on the elements of section 303(h)(1).
Discovery cutoff (for completion of discovery): 3/30/20 Expert(s) - deadline for reports: 3/16/20
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 5/5/20 Joint Status Report: 3/24/20
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 5/7/20 at noon Pretrial conference: 5/12/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 5/22/20 at noon (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 5/26/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Samini Cohen Spanos LLP Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
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Docket 77
Deny/overrule the claim objection, without prejudice, and stay future objections by Ms. Chao to Proof of Claim 2 as set forth below. Appearances are not required.
Proposed order: The Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deny/overrule the claim objection
Legal issues
Creditor (and sometime attorney for Debtor) the Law Offices of Lynn Chao, APC ("Chao") has filed a second objection (dkt. 77) to Proof of Claim 2 ("Claim 2"), filed by claimants Wei Dong, Wenrui Wang and Zongzhi Hu (the "Alleged Employees"). Chao's principal ground for disallowance of Claim 2 is that the Alleged Employees have provided no written proof that they were ever employed by Debtor. But, as the Alleged Employees point out (dkt.84, 85), this Court has already overruled this objection in connection with Chao's first objection to Claim 2 (see dkt. 73) and Chao does not cite any new authority to change this Court's conclusion on this basis.
As an alternative ground, Chao now argues that Debtor is not liable to the Alleged Employees for damages arising from California labor law violations because, based on a review of Debtor's books and records, Debtor could not find any evidence to establish that Debtor was ever their employer (dkt. 77, Declarations of Johnny Ling, Jianying Zhang). The tentative ruling is that this objection is sufficient to establish prima facie grounds for disallowing the claim under 11 U.S.C. 502(b), thus shifting the burden to the Alleged Employees to prove the validity of the claim by a preponderance of the evidence. See In re Heath, 331 B.R. 424 (9th Cir. BAP 2005); In re
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Consolidated Pioneer Mortgage, 178 B.R. 222, 226 (9th Cir. BAP 1995).
But the burden can go back and forth and the Alleged Employees have responded with more than equally probative arguments and evidence to establish that they could be considered employees, notwithstanding the alleged absence of books and records. See Short Decl. (dkt.84 pp.13 et seq.) and Dong Decl. (dkt.85). That shifts the burden back to Chao.
Evidentiary issues
Chao has asserted evidentiary objections (dkt.93, 94). But the tentative ruling is to overrule those objections in relevant part.
Chao objects that statements by declarant Wei Dong ("Dong") as to having worked at more than one location are irrelevant because Debtor is "a completely separate entity" from the entities that employed him (dkt. 93, p.2, objection 1). But that is circular reasoning: the Alleged Employees assert that the entities were not completely separate, but to the contrary were so intertwined that they must be considered commonly controlled and that Debtor was in fact their employer. That issue is being litigated in State Court, and unless and until a final order or judgment rules against the Alleged Employees this Court cannot presume that they were not in fact employees of Debtor.
The same analysis applies to Chao's relevance objection to Dong's statement as to his understanding that the Little Sheep Restaurants were "commonly controlled." Dkt.93, p.2, objection 2. As this Court understands the issues before the State Court, it is relevant if the Little Sheep Restaurants were held out to the public (including the Alleged Employees) as being "commonly controlled," and again this Bankruptcy Court cannot presume that the State Court will rule against the Alleged Employees on that issue.
Chao objects that Dong has not explained the basis for his understanding that Debtor and the other entities were commonly controlled. Dkt.93, p.2, objection 2. The tentative ruling is to overrule that objection because Dong sufficiently explains in the following paragraphs of his declaration some of the bases for that understanding.
Chao objects to the extent that Dong purports to know the understanding/thoughts of his fellow co-workers. Dkt.93, p.2, objection 2. The tentative ruling is to sustain that objection; but that does not matter. If Debtor revealed to Dong that it was part of a commonly controlled enterprise (as Dong asserts in his declaration) then Chao has not established how Dong's statement would be inadmissible simply because Debtor might not
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have revealed the same information to other Alleged Employees.
Chao objects to the relevance of Dong's statements about each restaurant using the same menus, business cards, uniforms, etc. Dkt.93, p.2, objection 3. Again, this goes to how Debtor held itself out. It also goes to whether the acts of Debtor and the other entities were in fact those of a common enterprise (i.e., regardless whether they held themselves out to the public as a common enterprise, if they acted like a common enterprise then, as this Court understands the issues before the State Court, that is relevant). Again, those are issues before the State Court and this Bankruptcy Court cannot presume that the State Court will rule against the Alleged Employees.
Chao objects that Dong has not detailed how he has personal knowledge of each restaurant using the same menus, business cards, etc. Dkt.93, p.2, objection 3. The tentative ruling is that Dong has provided more than sufficient explanation: he was a waiter and a manager, worked at more than one location, etc.
The tentative ruling is to overrule Chao's remaining objections to Dong's declaration (dkt.93, p.3) on the same grounds as described above. Although Dong could have provided more background as to the basis of his knowledge, he has provided enough.
The tentative ruling is also to overrule Chao's objections (dkt.94) to the Short Declaration. The relevance objections fail for the same reasons as outlined above in connection with the Dong declaration. The hearsay objections disregard standard exceptions to the hearsay rule (admission, public records, etc.). Mr. Short's assertion that the Alleged Employees were Debtor's own employees and are owed unpaid overtime etc. are interpreted by this Court as setting the context, from the Alleged Employees' perspective, and not as evidence, so on that one issue the tentative ruling is to sustain the objection. Dkt.94, p.2, objection 1.
In sum, on all relevant issues the tentative ruling is to overrule Chao's evidentiary objections. Therefore, the Alleged Employees have shifted the burden back to Ms. Chao, and she has not carried that burden on the present record.
Alternatively, the claim objection is premature, until the State Court renders a final judgment
The tentative ruling is that, even if Chao's objections were sufficient to shift the burden back to the Alleged Employees (which they are not), it would be premature to disallow the Alleged Employees' claims because those
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claims are still being litigated in State Court. Although the Alleged Employees have not requested that this Court abstain from deciding the claim objection, nevertheless the tentative ruling is that this Court on its own motion should defer to the State Court (28 U.S.C. 1334(c)), but without limiting the Alleged Employees' ability to obtain discovery through Rule 2004 (Fed. R. Bankr. P.) (see part "(3)" of this Tentative Ruling, below).
Conclusion
On the present record, the tentative ruling is to deny Chao's claim objection, without prejudice. Chao has not sufficiently satisfied her burden of proof and, alternatively, this Court should abstain and defer to the pending State Court litigation on the merits of the Alleged Employee's claims.
Sua sponte stay of future objections to Claim 2
As referenced above, this Court takes judicial notice that the focus of the parties' current dispute also appears to be the subject of pending litigation in state court (Dong et al v. Little Sheep International, Inc., Case No. BC 696904). This Court has serious concerns about whether it is a waste of judicial resources, imposes a risk of inconsistent judgments, and is otherwise inappropriate to proceed simultaneously with litigating substantially (if not entirely) the same issues in two fora at once.
Therefore, the tentative ruling, on this Court's own motion (as authorized by 11 U.S.C. 105(a)), is to stay any future claim objection issues with respect to Claim 2 until this Court can hold a status conference to determine whether it should proceed with a ruling on the merits. Meanwhile, this Court will suspend any deadline that otherwise would apply for any opposition to any claim objection (and any reply), as authorized by Rule 9006, 9007, and 9029 (Fed. R. Bankr. P.) and Local Bankruptcy Rule 1001-1(d).
No stay of Employees' pending Rule 2004 discovery
Nothing in the foregoing tentative ruling is intended to contradict this Court's oral rulings at prior hearings that the Alleged Employees discovery under Rule 2004 (Fed. R. Bankr.P.) can go forward, notwithstanding the pendency of the State Court action. As this Court has explained, (a) any objections by Debtor and others that discovery should be conducted solely in State Court were raised too late and accordingly were forfeited and waived, and alternatively (b) the scope of Rule 2004 is appropriately broader than the scope of nonbankruptcy discovery, and Debtor cannot obtain the advantages
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of bankruptcy without also subjecting itself to the bankruptcy discovery tools.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Movant(s):
Law Offices of Lynn Chao, A.P.C. Represented By
Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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fr. 12/10/19, 1/7/20, 2/4/20
Docket 38
Tentative Ruling for 2/18/20:
Appearances are not required.
Current issues
The Alleged Employees' Motion for Contempt (dkt. 38), declaration of William G. Short (dkt. 81), supplemental declaration of William G. Short (dkt. 90)
The Alleged Employees seek $7,300 and $1,155 in costs from Debtor, and $10,450 against Chao. The tentative ruling is to disallow 4 hours out of the 29.5 total that the Alleged Employees are seeking against Debtor, for a combination of: (a) a slight reduction for "clumping" some fee entries (e.g., 6/13/19 entry), (b) a slight reduction on account of the posted Procedures of Judge Bason regarding non-working travel time, and (c) a slight reduction because preparation for the examination that was held was not entirely wasted.
This Court recognizes that, on each of these issues, it would be possible to require further evidence. But the tentative ruling is that the above estimate is sufficient for present purposes, and that further litigation over these issues would only increase the costs for all parties. At $500 per hour, a four hour reduction amounts to $2,000 against Debtor, resulting in the following awards: $5,300 fees plus $1,155 costs = $6,455 against Debtor, and
$10,450 against Chao.
The Alleged Employees' Motion for Protective Order (dkt. 82)
This motion was presented on an ex parte basis. No response has been filed, and until now this Court taken no action on this - neither granting nor denying this motion.
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The tentative ruling is temporarily to maintain the status quo.
Specifically, the tentative ruling is to grant a temporary stay of any discovery against the Alleged Employees (as distinguished from discovery by the Alleged Employees, which may go forward), and direct the Alleged Employees to file and serve a notice, no later than 2/20/20, setting this matter for hearing on 3/10/20 at 11:00 a.m., concurrent with the Alleged Employees' objection to the Law Offices of Lynn Chao, APC's proof of claim, with any opposition papers due 3/3/20 and any reply at the hearing.
Proposed orders: The Alleged Employees are directed to lodge separate proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Appearances required.
Current issues
Employees' Motion for Contempt (dkt. 38)
This matter has been continued a number of times to allow time for discovery and to address further the sanctions issues. On 1/24/19, Employees submitted the declaration of William G. Short (dkt. 81, the "Short Decl.").
The tentative ruling is that the Short Decl. does not include sufficient evidence to meet the usual standards for compensatory sanctions, including for example (a) evidence justifying a billing rate of $500/hr. (e.g., any board certifications, a summary of relevant experience in the legal specialt(ies) at issue, evidence of the customary compensation charged by comparably
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skilled practitioners in similar cases) or (b) a breakdown of what fees and expenses would not have been incurred but for the failure of Debtor and/or its agents to respond to discovery requests in accordance with the applicable rules (e.g., the Small Decl. includes charges for deposition preparation but, although it is true that Debtor initially failed to produce its person most knowledgeable, there is no explanation why the deposition preparation was not helpful when Debtor did eventually produce its person most knowledgeable for deposition). Cf. 11 U.S.C. 330(a)(3)&(4) (standards applicable to asserted administrative expenses).
The tentative ruling is to continue this matter to 2/18/20 at 11:00 a.m., to be concurrent with another scheduled matter in this case, with a deadline of 2/10/20 for Employees to file and serve their second supplemental declaration, a deadline of 2/14/20 at noon for any opposition papers to be filed and served by Ms. Chao and/or Debtor, and any further responses orally at the continued hearing.
Outstanding discovery issues?
The parties are directed to address whether there are any outstanding discovery issues that need to be resolved. The tentative ruling is to hear any such issues, at least on an initial basis, at this hearing, consistent with the posted Procedures of Judge Bason (www.cacb.uscourts.gov) regarding discovery disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required. This matter was continued to this date to allow time for the parties to meet and confer, conduct further discovery, and then at this hearing to address further the sanctions issues. On 12/23/19, the Creditors conducted the requested 2004 examination. The parties are directed to appear to provide this Court with an update on the status of their dispute.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances required. The tentative ruling is to grant the motion and award compensatory sanctions (dkt.38), for the reasons set forth therein and in creditors' reply (dkt.55) to the only opposition papers - the declaration of Lynn Chao (dkt.42). See also dkt.33, 40 (Order compelling production), dkt.43 (Order to Show Cause). The tentative ruling is also to grant the motion and award coercive sanctions, in an escalating dollar amount to be addressed at the hearing. The tentative ruling is to deny any request for an order directing Google to do anything, for lack of sufficient notice and cited authority/analysis. The tentative ruling is also to continue the motion to a future date (to be determined), which will provide an opportunity (a) to monitor future compliance/non-compliance, (b) to impose additional coercive sanctions or terminate those sanctions as appropriate, and (c) address any other appropriate relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
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Movant(s):
Wei Dong Represented By
Mark Fang
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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Adv#: 2:19-01507 Clark v. Farris-Ellison et al
Illegal business practices; 8) Declaratory relief; 9) Cancellation of written instrument; 10) Slander of title; 11) Negligence; 12) Fraud; 13) To void or cancel trustee's deed upon sale 14) Breach of the implied covenant of good faith and fair dealing; 15) Unjust enrichment; 16) Violation of California Business and Professions Code Sections 17200 et seq.; 17) Breach of written contract; 18) Set aside trustee sale
Docket 1
- NONE LISTED -
Debtor(s):
James Lee Clark Pro Se
Defendant(s):
Rita Gail Farris-Ellison Pro Se
Lenders Escrow Inc Pro Se
Just that EZ Financial Pro Se
First American Flagstar Bank Pro Se First American Titlelenders Escrow Pro Se Does 1 to 100 inclusive Pro Se
Flagst Bank Pro Se
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Plaintiff(s):
James Clark Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01511 Zhu v. Hsu
Docket 1
Appearances required.
Preliminary issues
Status report
This Court issued a summons which required the parties to file a joint status report at least 14 days before the hearing, or by 2/4/20. Adv. dkt. 2,
p.2. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Standard issues
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
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Mediation
Is there is any reason why this Court should not order the parties to
mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/25/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 12/16/19.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Yiping Zhu Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01429 Duran v. Ramirez et al
Docket 12
Please see the tentative ruling for the adversary proceeding status conference (Calendar no. 6, 2/18/20 at 11:00 a.m.).
Debtor(s):
Tony Quesada Ramirez Represented By David Lozano
Defendant(s):
Tony Quesada Ramirez Pro Se
Evelyn Ramirez Pro Se
Joint Debtor(s):
Evelyn Ramirez Represented By David Lozano
Movant(s):
Ulises Duran Pro Se
Plaintiff(s):
Ulises Duran Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01429 Duran v. Ramirez et al
fr. 12/10/19
Docket 1
Tentative Ruling for 2/18/20:
Appearances are not required on 2/18/20.
Current issues
Plaintiff's motion for default judgment (adv. dkt. 12)
On 1/29/20, the underlying bankruptcy case was dismissed and Debtors/Defendants did not receive a discharge (see Case No. 2:19-
bk-18582-NB, dkt. 26). Therefore, the tentative ruling is to DENY this motion as MOOT.
After the hearing this Court will prepare orders (a) denying the motion as moot and (b) dismissing this adversary proceeding.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19. This Court has reviewed relevant documents and records filed in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report,
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they need not repeat their positions at the status conference.)
Current Issues.
The tentative ruling is to continue this matter to the date set forth below and set a 12/31/20 deadline for plaintiff to file motion(s) for default judgment.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Intentionally omitted.
Deadlines: This adversary proceeding has been pending since 9/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 2/4/20.
Continued status conference: 2/18/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
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Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tony Quesada Ramirez Represented By David Lozano
Defendant(s):
Tony Quesada Ramirez Pro Se
Evelyn Ramirez Pro Se
Joint Debtor(s):
Evelyn Ramirez Represented By David Lozano
Plaintiff(s):
Ulises Duran Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01436 Sam S. Leslie, Chapter 7 Trustee v. Red Sea Consultancy FZE
Docket 20
Please see the tentative ruling for the status conference (calendar no. 8, 2/18/20 at 11:00 a.m.)
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Red Sea Consultancy FZE Pro Se
Movant(s):
Sam S. Leslie, Chapter 7 Trustee Represented By
Elissa Miller
Plaintiff(s):
Sam S. Leslie, Chapter 7 Trustee Represented By
Elissa Miller
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Adv#: 2:19-01436 Sam S. Leslie, Chapter 7 Trustee v. Red Sea Consultancy FZE
Docket 1
Tentative Ruling for 2/18/20:
Appearances are not required.
Current issues
Chapter 7 Trustee/Plaintiff Motion For Default Judgment (adv. dkt.
20)
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU
within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
[Intentionally omitted. No party has questioned venue or this Court's jurisdiction and authority, and this Court is satisfied that venue is proper and it has jurisdiction and authority to issue a final judgment.]
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702
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F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 10/3/19. [Discovery cutoff and other dates are moot, and have been
intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Continue to 2/18/20 at 11:00 a.m. for a hearing on Plaintiff/Trustee's anticipated motion for a default judgment (see unilateral status report, adv.dkt.19). Appearances are not required on 1/7/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Red Sea Consultancy FZE Pro Se
Plaintiff(s):
Sam S. Leslie, Chapter 7 Trustee Represented By
Elissa Miller
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
fr. 07/30/19, 9/24/19, 12/17/19
Docket 1
Tentative Ruling for 2/18/20:
Continue to 3/3/20 at 11:00 a.m. in view of Defendant Salgado's counsel's notice of unavailability (adv. dkt.13) and unilateral status report (adv. dkt.12). Appearances are not required on 2/18/20. Based on the joint status report filed by the parties (adv. dkt. 14), it appears that this adversary proceeding may still settle. In case settlement discussion break down again, the parties are directed to meet and confer regarding possible dates for a trial and related deadlines. If the parties are able to agree on those things, they are directed to lodge a proposed order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Status of anticipated settlement
At the hearing on 9/24/19 this Court directed the parties to lodge a
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mediation order no later than 12/3/19 if the matter had not settled by then. It appears that at least some parties may have settled. The trustee and one of the defendants have filed a status report (adv. dkt. 10) stating that they anticipate settling this matter, either by cooperating in a sale of the the real property or by defendants purchasing the estate's claims against them. The parties are directed to address the status that anticipated settlement, and any other relevant matters.
General issues
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adversary docket number(s) 8, 9).
Deadlines: This adversary proceeding has been pending since 5/10/19.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 2/4/20
Continued status conference: 2/18/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
This Court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to order mediation - as requested by both parties - and continue this Status Conference as set forth below.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
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Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 10/2/19 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/10/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/3/19.
Continued status conference: 12/17/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 7/30/19:
Continue to 9/19/19 at 11:00 a.m. to provide the newly-appointed Chapter 7 Trustee an opportunity to meet and confer with the defendants (see adv. dkt. 8). Appearances are not required on 7/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Pro Se
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
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[Capital One Auto Finance. a division of Capital One. N.A.] fr. 1/22/20
Docket 10
Appearances required. This matter was continued to this hearing date (see Order, dkt. 13), for Debtor to attempt to negotiate with the creditor who is a party to this proposed reaffirmation agreement. The tentative ruling, absent new developments to the contrary, is to disapprove the agreement as being an undue hardship.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alexei Pak Represented By
Barry E Borowitz
Trustee(s):
Sam S Leslie (TR) Pro Se
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 12/17/19
Docket 23
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 12, 2/18/20 at 11:00 a.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 3, 12/17/19 at 11:00 a.m.)
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Movant(s):
Kieran Graner Represented By Stephen B Goldberg
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Sharon Graner Represented By Stephen B Goldberg
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
11:00 AM
Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18,10/9/18, 11/27/18, 01/08/19, 2/5/19, 03/05/19, 04/30/19, 06/04/19; 07/30/19, 9/24/19, 11/12/19, 12/17/19
Docket 1
Tentative Ruling for 2/18/20:
Continue to 3/3/20 at 11:00 a.m. to be concurrent with the motion (main case dkt.67) to approve the settlement of this matter. Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 12/17/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Plaintiffs' motion to strike answer and enter default (adv. dkt. 23) The tentative ruling is that, because no Answer was ever filed,
Plaintiffs' request to strike the answer is moot. As for Plaintiffs' request for entry of a default judgment, the parties are directed to appear and address whether this Court should enter a default judgment or if instead the attempted settlement will be implemented.
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Status Conference
The tentative ruling is to set a continued status conference for 1/28/20
at 11:00 a.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 11/12/19:
Continue to 12/17/19 at 11:00 a.m., to be concurrent with another calendared matter (see adv. dkt. 23-25). Appearances are not required on 11/12/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). The parties should be prepared to discuss the following issues:
No Status Report
Again, the parties have not filed a Joint Status Report. Why not?
Efforts to finalize settlement
The 4/18/19 status report (adv.dkt.19) reports that this matter has settled. But the dockets in this adversary proceeding and in the associated bankruptcy case still do not reflect any steps to finalize the settlement (e.g., a motion in this adversary proceeding to approve a stipulated judgment, and/or a status report regarding the status of settlement payments and a suggested
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date to continue this matter, and/or if necessary a motion in the bankrupcy case to approve a settlement per Rule 9019, Fed. R. Bankr. P.). Why not? This adversary proceeding has been pending since 6/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/30/19:
Continue to 9/19/19 at 11:00 a.m., with a brief status report due 9/5/19 addressing whether the required settlement payments have been made, and any other issues regarding the parties' settlement (as reported at the status conference on 6/4/19). Appearances are not required on 7/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/4/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties are directed to address why the docket does not reflect any steps to finalize their reported settlement (e.g., a motion in this adversary proceeding to approve a stipulated judgment, and/or if necessary a motion in the bankrupcy case to approve a settlement per Rule 9019, Fed. R. Bankr.
P.). This adversary proceeding has been pending since 6/22/18.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/19:
Continue this status conference to 6/4/19 at 11:00 a.m. so that the parties can document their settlement and obtain any approval of Court that may be necessary or appropriate. See Status Report (adv. dkt. 19). Appearances are not required on 4/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/5/19:
Appearances required.
The parties are directed to address (1) why no status report was filed as required by the adopted 2/5/19 tentative ruling, and (2) whether the parties have scheduled and/or attended mediation.
The tentative ruling is to continue this status conference to 4/9/19 at 11:00 a.m, with a brief status report due by 3/26/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/5/19:
Continue to 3/5/19 at 11:00 a.m, with a brief status report due by 2/26/19. Although the latest Status Report (adv. dkt. 16) does not address whether the mandatory mediation ordered by this Court has occurred, it appears that more time is needed for mediation. Caution: If the parties do not schedule and attend mediation before the next status conference, this Court may impose sanctions on the recalcitrant party(ies). Appearances are not required on 2/5/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/8/19:
Continue to 2/5/19 at 11:00 a.m, with a brief status report due by 1/29/19. Appearances are not required on 1/8/19.
The parties have lodged, and this Court has approved, the Order Assigning Matter to Mediation Program and Appointing Mediator and Alternate Mediator (dkt. 11). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 11/27/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 10/9/18, Defendants did not appear, and this Court was persuaded to take a flexible approach to whether Plaintiff would pursue default judgments, or mediation, or other avenues. The docket does not reflect any activity since that time. Should this status conference be continued? Should this adversary proceeding be dismissed for lack of prosecution?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address why neither party has lodged a mediation order (via this Court's "LOU" program) as required by the adopted tentative ruling for 9/4/18. Cf. adv. dkt. 7 (belated request for mediation).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 9/4/18:
Appearances required. The court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 9/10/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 6/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed
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order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/27/18. Expert(s) - deadline for reports: 12/4/18
Expert(s) - discovery cutoff (if different from above): 12/11/18 Dispositive motions to be heard no later than: 12/18/18.
Joint Status Report: n/a
Continued status conference: 10/9/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
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Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
11:00 AM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19
Docket 1
Tentative Ruling for 2/18/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (2/18/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
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fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19
Docket 323
Revised Tentative Ruling for 2/18/20:
Appearances are not required on 2/18/20.
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pachulski v. Young et al., Adv. Case No. 2:18-ap-01233-NB ("Preference Adv."); (d) Affeld Grivakes, LLP v. Pachulski, Adv., Adv. No.
2:19-ap-01028-NB ("Affeld Grivakes Adv.").
The tentative ruling is to take off calendar all matters in the Preference Adv. and the Affeld Grivakes Adv. because both matters have been settled (subject to any required approval of this Court, see L&B Case, dkt. 472).
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay- Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conferences to 3/3/20 at 11:00 a.m., to be concurrent with other matters. No written status reports required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Appearances are not required on 2/18/20.
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pachulski v. Young et al., Adv. Case No. 2:18-ap-01233-NB ("Preference Adv."); (d) Affeld Grivakes, LLP v. Pachulski, Adv., Adv. No.
2:19-ap-01028-NB ("Affeld Grivakes Adv.").
The tentative ruling is to continue all matters on calendar for today to the date of the continued status conferences, set forth below, to be concurrent with the hearing on a motion to approve a settlement involving the Preference Adv. (L&B Case, dkt. 472).
At the continued hearing, the parties are directed to address whether any further acts need to be taken to implement the settlement of the Affeld Grivakes Adv. (L&B Case, dkt. 466, 469), and whether that adversary proceeding should be dismissed or otherwise resolved.
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay- Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
11:00 AM
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conferences to 3/3/20 at 11:00 a.m. No written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:19-01028 Affeld Grivakes LLP v. Pachulski
fr. 04/02/19, 06/04/19, 7/30/19, 10/1/19, 11/12/19, 12/10/19
Docket 1
Tentative Ruling for 2/18/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (2/18/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Richard M Pachulski Represented By James KT Hunter
Plaintiff(s):
Affeld Grivakes LLP Represented By Damion Robinson
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:18-01233 Pachulski v. Young et al
Docket 30
Tentative Ruling for 2/18/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (2/18/20 at 11:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Jeffery Young Represented By Gary R Wallace
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Neifert Khorshid Represented By
M. Jonathan Hayes
Movant(s):
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
11:00 AM
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Plaintiff(s):
Richard M Pachulski Represented By James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:18-01233 Pachulski v. Young et al
fr. 12/10/19
Docket 33
Tentative Ruling for 2/18/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (2/18/20 at 11:00 a.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Jeffery Young Represented By Gary R Wallace
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Neifert Khorshid Represented By
M. Jonathan Hayes
Movant(s):
Neifert Khorshid Represented By
M. Jonathan Hayes
11:00 AM
Plaintiff(s):
Richard M Pachulski Represented By James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:18-01233 Pachulski v. Young et al
fr. 11/27/18, 4/30/19, 06/04/19, 9/10/19, 12/10/19
Docket 10
Tentative Ruling for 2/18/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (2/18/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Defendant(s):
Jeffery Young Represented By Gary R Wallace
Conal Doyle Represented By
M. Jonathan Hayes
Wilshire Law Firm, PLC Represented By
M. Jonathan Hayes
Babak Bobby Saadian Represented By
M. Jonathan Hayes
Neifert Khorshid Represented By
M. Jonathan Hayes
Plaintiff(s):
Richard M Pachulski Represented By
11:00 AM
Trustee(s):
James KT Hunter
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Docket 11
- NONE LISTED -
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Movant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
11:00 AM
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
1:00 PM
Docket 5
Appearances are not required.
Current issues
DTLA Properties, Inc. Motion For Relief From The Automatic Stay (Unlawful Detainer) (dkt. 7)
Grant as set forth in calendar no. 2, 2/18/20 at 1:00 p.m.
Dismiss this case
This is Debtor's second bankruptcy filing in less than three months.
Debtor's prior case (2:19-bk-24527-NB) was dismissed at the 1/14/20 status conference, without a bar, but with a caution to Debtor to coordinate with the United States Trustee to avoid the pitfalls from the prior case should Debtor choose to refile. It appears to this Court that the current case is proceeding much like the prior case.
Debtor's current case was filed 1/17/20 and Debtor's status report (dkt.25) does not adequately explain why there are no "first day" motions and why Debtor believes that no patient care ombudsman is needed (this Court notes that Debtor has now stipulated to the appointment of an ombudsman, dkt.28). In addition, under this Court's tentative ruling regarding relief from the automatic stay, Debtor will lose its premises so there might be no point to proceeding in this chapter 11 case.
The tentative ruling is to dismiss this case. The tentative ruling is not to impose a bar under 11 U.S.C. 109(g)(1) because (a) the "in rem" relief from the automatic stay will prevent any future bankruptcy case from interfering further with the landlord's remedies and (b) although Debtor's conduct appears to amount to a failure to appear in proper prosecution of this case, it is not clear on the present record that such conduct is "willful" (as required by section 109(g)(1)), and rather than put the parties to the expense of an evidentiary hearing or further briefing on that issue, it appears to be more efficient simply to order a straight dismissal of this case with no bar.
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Deadlines/dates. This case was filed on 1/17/20.
Bar date: N/A (DO NOT SERVE notice yet).
Procedures order: dkt. 4 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: N/A.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Universal Health Foundation Represented By Brandon J Anand
1:00 PM
DTLA PROPERTIES, INC.
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Federal law
Grant the motion under 11 U.S.C. 362(b)(10) and 541(b)(2). The tentative ruling is that the Reply is correct: the automatic stay does not apply to the "any act" by Movant as lessor under the lease that expired prepetition. Dkt.27, pp.4:17-6:7. In other words, the automatic stay does not apply as a matter of federal bankruptcy law.
California law
Alternatively, the automatic stay does not apply because Debtor has not established that, under California law, Debtor had any cognizable interest that could possibly be protected by the automatic stay. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue."). Debtor's opposition argues that In re Perl is distinguishable from this current case because In re Perl dealt with a residential tenant, and Debtor is a non-residential tenant. Dkt. 26, p.11:8-11. Debtor does not adequately explain how that distinction matters. Id. at p.11:23-p.12:1.
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Although Debtor argues for relief from forfeiture, the tentative ruling is that, even if there were a potential ground to regain an interest in property, that in itself would not be an interest in property, so the automatic stay would not apply even supposing, for the sake of discussion, that Debtor would be entitled to relief from forfeiture. Moreover, Debtor has not established that there was any forfeiture: the leasehold was not forfeited - it ended. Therefore Debtor has not established any interest in the subject premises under California law that could be protected by the automatic stay.
Grounds for relief from any automatic stay
In the alternative and in addition, even if the automatic stay applied (which it does not), the tentative ruling is that Movant has established sufficient grounds for relief from the automatic stay as set forth below. In addition, some the requested relief applies even if there is no automatic stay in this case - i.e., the request that "in rem" relief be granted so that no future bankruptcy case will affect Movant's interest in the property.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Universal Health Foundation Represented By Brandon J Anand
Movant(s):
DTLA Properties, Inc. Represented By Julian K Bach
1:00 PM
Docket 20
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 6
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Employment application (dkt.21)
Debtor has filed Nat. Form B2030 (dkt. 23) and an amended SOFA (dkt. 24) disclosing that a retainer of $10,000 was paid by one James G. Lewis, who is described as one of Debtor's unsecured creditors. The tentative ruling is to set a deadline of 2/25/20 for Debtor and Mr. Lewis each to file and serve on the Office of the United States Trustee their declarations addressing the ethical concerns involved whenever a retainer is paid by a third party. See In re 9469 Beverly Crest, LLC (Case No. 2:19-bk-20000-NB, dkt.44). The tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see below).
As for other issues raised in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to cap costs for photocopying and other expenses per the applicable guidelines (see dkt.21, at PDF p.20), to authorize late payment charges only from when fees and costs are authorized and directed to be paid by this Court (see id., at PDF p.21), and to include the other standard provisions set forth in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Budget motion (as amended, dkt.34): This motion has been self- calendared for 3/3/20 at 1:00 p.m. There is no tentative ruling regarding that motion, but this Court notes (in anticipation of that hearing) that (i) Debtor lists a $750/mo. contribution from his son (dkt.34 at PDF p.9) but there is no contribution declaration on the docket; (ii) Debtor's MOR (dkt.35 at PDF p.7) states that going forward Debtor and his non-debtor wife will pay only their
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portion of the combined insurance premium for their vehicles and their children's vehicles, and that their children will be responsible for their own car loan payments and insurance, but there is no disclosure of how the insurance expense has been allocated; and (iii) Debtor's monthly income projected in the budget motion appears to be substantially lower than in prior years, based on a comparison with Debtor's Statement Of Financial Affairs ("SOFA") (dkt.24, line 4, at p.2), but there is no explanation why. (This Court also notes that the budget no longer includes $500/mo. of "support" payments "to mother-in-law and sister-in-law.")
Substantial equity in properties alleged to have been fraudulently transferred. As directed in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to direct Debtor to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfers of those properties, and direct all parties in interest who appear to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
1:00 PM
Tentative Ruling for 2/4/20:
Appearances required by counsel for the debtor and by Debtor(s) themselves.
Current issues
Employment application (dkt.21): Debtor fails to disclose the source of funds used to pay proposed bankruptcy counsel (id., p.8). Nor is there any disclosure of either the payment or the source of funds in the SOFA line 16 (dkt.19, at PDF p.47). Nor has counsel filed the required disclosure under Rule 2016 (Fed.R.Bankr.P.). See Nat. Form B2030.
The employment application lists costs for photocopying and other expenses that appear to exceed the applicable guidelines (see dkt.21, at PDF p.20). The tentative ruling is to disapprove those proposed charges.
Late payment charges can only run from when fees and costs are authorized and directed to be paid (as ordered by this Court) (see id., at PDF p.21). Pursuant to the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) any employment order will supersede the provisions in the employment application that would otherwise provide for an attorney lien (impermissible because it would create a conflict of interest). Under the same Procedures, any arbitration provision is subject to this Court's initial jurisdiction to review any fee disputes (id., at PDF p.21).
The tentative ruling is to set a deadline of 2/7/20 to file and serve documents correcting the foregoing deficiencies. If those documents are amendments to previously filed documents, all changes must be shown by "blacklining."
Budget motion (dkt.20): SchJ line 17 (reproduced at dkt.20, PDF p.12) shows two cars, but Debtor's bankruptcy Schedules A/B and D (dkt.19 at PDF pp.4-5 & 15-16) show four cars (all under-water). What is Debtor's intent regarding these cars, and why does Debtor need so many?
SchJ line 19 (reprodcued at dkt.20, at PDF p.12) shows $500/mo. of "support" payments "to mother-in-law and sister-in-law." Are these truly "support" payments within the meaning of 11 U.S.C. 101(14A)(A)(i) & (B) and 11 U.S.C. 707(b)(2)(A)(ii)(II) (incorporated by 11 U.S.C. 1129(a)(15) and 1325(b)(2)(A)(i)), and can they be deducted properly from Debtor's income?
Substantial equity in properties alleged to have been fraudulently transferred. Based on SOFA line 13 (dkt.19 at PDF p.46), certain creditors
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allege that Debtor fraudulently transferred interests properties at 319 N. Sunset Ave., La Puente, CA ("Sunset") and 1545 Cambria St, Los Angeles, CA 90017, where Debtor resides ("Cambria"), as gifts to his wife and children, perhaps to evade payment of a judgment in those creditors' lawsuit asserting that Debtor's rental property was uninhabitable. See SOFA line 9 (dkt.19, at PDF p.45). Based on Bankruptcy Schedule D (dkt.19, at PDF pp.15-16) and Debtor's Status Report (dkt.18, p.A-2, lines 15-25), there appears to be over
$300,000 of equity in Sunset and over $1.1 million in unencumbered equity in Cambria. Debtor cannot and does not claim any exemption in these properties that he allegedly fraudulently transferred. See Bankruptcy Schedule C (dkt.19, at PDF pp.13-14).
Debtor is directed to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfer. All parties are directed to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 3 (timely served, dkt. 9)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reijo Kustaa Myllyla Represented By
1:00 PM
Byron Z Moldo
1:00 PM
Docket 126
Please see the tentative ruling for the status conference (Calendar no. 6, 2/18/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 42
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Debtors' amended Disclosure Statement (dkt. 133) and amended Chapter 11 Plan of reorganization (dkt. 134)
The tentative ruling is to set a deadline of 2/28/20 for Debtors to file, BUT NOT SERVE on anyone except the United States Trustee and parties requesting a copy, a further amended Plan and amended Disclosure Statement to correct the issues discussed below. Debtors' counsel are cautioned that serving these draft documents as they have done (dkt.133, pp.83-85) is contrary to this Court's directions (see, e.g., Tentative Ruling for 1/28/20, part (2)(c), reproduced below), and is also wasteful of photocopying and postage expenses.
Erroneous/duplicative text
Debtor's Disclosure Statement (dkt.133, at PDF p.9:13-15) states that Debtors propose to pay the IRS over 60 months. But that is longer than permitted under 11 U.S.C. 1129(a)(9), and it is also inconsistent with their Exhibit A (dkt.133, at PDF pp.14&16) which proposes to pay the IRS over 48 months. Debtors have also classified the IRS as Class 3A, but priority tax debts are required to be unclassified. 11 U.S.C. 1123(a)(1).
These inconsistencies and errors illustrate the problems and confusion that can be caused by Debtors departing from the required forms and inserting their own text. The tentative ruling is to direct Debtors to delete all of the text inserted into the forms (e.g., dkt.133 at PDF pp.2, 3, 4, 7-12).
Disclosure Statement, Exhibits A and C (dkt.133 at PDF pp.14, 27-35 )
Again, Debtors are causing problems by departing from the required
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forms. Under an attachment to Exhibit C (dkt.133 at PDF p.30, line 3b), Debtors are directed to make adjustments to avoid double counting. But, for example, Debtors have double counted their $2,480.18 monthly mortgage payment on their rental property: both in their bankruptcy Schedule J (dkt.133 at PDF p.35) that they use to calculate disposable income and in their proposed Exhibit A showing distributions to creditors (dkt.133, Ex.A, at PDF p.14, Class 2A).
Again, Debtors must follow the forms: do not count that mortgage payment in calculating net income available to pay creditors (adjust the calculations in bankruptcy Schedule J to "back out" any debt payments or other double-counting), and list payments of debts only once, in Exhibit A.
Schedules I & J
Debtors have not complied with this Court's tentative ruling below (1/28/20) directing them to file corrected bankruptcy Schedules I & J that reflect income and expenses as of the petition date, not later dates. Why not? The tentative ruling is to set a deadline of 2/28/20 for Debtors to file corrected bankruptcy Schedules I & J.
Fee Application of A.O.E. Law & Associates ("AOE") (dkt. 126, 127), UST's opposition (dkt. 131), stipulation resolving UST's opposition (dkt. 136), Debtors' declaration (dkt. 139)
Applicant seeks an interim award of $6,591 in fees and $87.30 in expenses, for a total award of $6,678.30. The tentative ruling is to grant in part and deny in part the application as follows.
First, AOE states that it performed $10,150 in services for Debtors during the relevant fee period, but has applied a $3,559 retainer against those fees, so it only seeks approval of $6,591 in fees. Pursuant to 11 U.S.C.
330(a), all fees and expenses incurred in connection with AOE's representation of Debtors in this case must be approved by this Court. Therefore, the fee application should have requested approval of $10,150 in fees, but only sought payment of 6,591 in fees.
The tentative ruling is that, although the fee application is deficient and somewhat confusing on this issue, it includes sufficient disclosures that parties in interest have been notified of the totals that are really sought.
Therefore, this Court can approve the correct totals (with a caution to counsel to list the correct amounts next time).
Second, the order authorizing AOE's employment is effective as of
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9/29/19 (dkt. 117), but AOE seeks $1,125 in fees for two time entries billed on 9/28/19 without addressing why such fees are warranted. The tentative ruling is to treat the fee application as including a request to amend the employment order to authorize earlier employment by a day or two, and direct Debtor to lodge a proposed amended employment order (again, with a caution to counsel to use the correct dates next time).
Third, pursuant to the stipulation resolving the UST's opposition, AOE has agreed to reduce its fees by an additional $645 (dkt. 136).
Based on the foregoing, the tentative ruling is to approve $9,505.00 in fees ($10,150.00 - $645.00 = $9,505.00) in fees and $87.30 in expenses, for a total award of $9,592.30, and direct Debtors to pay $6,033.30 ($9,592.30 -
$3,559.00 retainer = $6,033.30).
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 4/21/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 1/28/20:
Appearances required.
Current issues
Debtors' Disclosure Statement (dkt. 123) and chapter 11 Plan of reorganization (dkt. 124)
The tentative ruling is to set a deadline of 2/4/20 for Debtors to file corrected bankruptcy Schedules I&J, a declaration of postpetition income and expenses, a corrected and "blacklined" Disclosure Statement, and a corrected and "blacklined" Plan, addressing the following issues:
Debtors' net income calculations are very confusing Debtors' net income calculations are confusing for three reasons.
First, bankruptcy Schedules I and J (filed both as part of the Plan documents and separately) are supposed to reflect income and expenses as of the petition date, not later dates. For later dates, Debtors should have used this Court's local form declaration of postpetition income and expenses. Using the wrong forms is confusing and misleading.
Second, it appears from this Court's notes of the hearing on 7/30/19 that Debtors moved out of their Locust Avenue duplex at some point, so they are now renting out both units (and meanwile they are themselves renting their living space for $1,000/mo.); but the Plan and Disclosure Statement do not make this clear. In addition, Debtors appear to list income from three renters - what space is the extra renter occupying, given that the property is a duplex not a triplex? Specifically, amended Schedule I, line 8a, lists
$1,600/mo. income (tenant #1), and line 8h and Ex.A list two more tenants paying a total of $3,445/mo. (tenants #2&3). Is this accurate?
Third, Debtors' mortgage obligation does not appear to be included either in their calculation of net income from their rental property (amended bankruptcy Schedule I, dkt.122, at PDF pp.29-30, line 8a & Ex.A) or in their expenses (Schedule J, line 20a, dkt.122, at PDF p.31). In one or another of those places, they should have included their mortgage expense of $2,480.18 for principal and interest (dkt.122, at PDF p.30).
That error is balanced out by the fact that the Plan proposes to pay that amount. But the correct way to show this would have been to file an accurate declaration of postpetition income and expenses and then, in the Disclosure Statement, adjust Debtors' net income by backing out whatever
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mortgage was included in the declaration of postpetition income and expenses. Exhibit C-1 to the Disclosure Statement has a line to make such adjustments.
The Plan in its current form is infeasible by $325 on the Effective
Date
Debtors' cash flow statement (dkt.123, Ex.C) shows a negative
balance on the effective date: it gives the impression that the Plan is infeasible because Debtors would not be able to make the mandatory $325 payment to the UST on the effective date (see 11 USC 1129(a)(12)). Debtors are directed to address whether they will have sufficient cash on hand to make this payment.
The Plan does not comply with 11 USC 1129(a)(9)
Debtors propose to pay the IRS's claim over a period of 60 months, beginning on the proposed 4/1/20 effective date; but section 1129(a)(9) requires that the IRS's claim be paid in full within 5 years of the order for relief (i.e. 5 years from 4/10/19, or by 4/10/24).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Plan/Disclosure Statement*: The tentative ruling is to set a deadline of 2/4/20 for Debtors to file (BUT NOT SERVE) an amended Plan and Disclosure Statement correcting the foregoing issues, with manual "blacklining" showing all changes, which this Court will review prior to the continued status conference.
Continued status conference: 2/28/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 55
Please see the tentative ruling for the status conference (calendar no. 9, 2/18/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 1/14/20
Docket 31
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 9, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/14/20:
Deny in part and grant in part Debtor's motion for use of cash collateral (the "Cash Collateral Motion," dkt. 31) on an interim basis, subject to the conditions set forth below, with a continued, final hearing on 2/18/20 at 1:00 p.m., and a deadline of 1/17/20 for Debtor to file and serve a notice of the final hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Preliminary Issues
(1) Disputed liens
Debtor disputes claim(s) allegedly secured by two properties: (1) 45 East 69th Way, Long Beach, CA 90805 ("69th Way") and (2) 11 Shadow Lane, Rolling Hills, CA 90272 ("Shadow Lane"). Debtor does not dispute a claim secured by a third property: (3) 49 East 68th Way, Long Beach, CA 90805 ("68th Way"). See dkt. 31, p.11, para. 8.
Debtor asserts the 69th Way and Shadow Lane properties are "encumbered by a loan which he did not take out but was fraudulently done by a realtor Frank Hernandez whose license has been suspended." Dkt.30 at PDF p.3. Debtor declares, "I will segregate all excess funds in the Debtor in Possession account while a resolution on those claims [is being obtained]."
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Dkt. 31, p.11, para. 8. This Court has several concerns.
First, Debtor has not provided proof that the Cash Collateral Motion was served properly on the holder(s) of the lien on those two properties, in full compliance with Rule 7004 (Fed. R. Bankr. P.) (made applicable by Rule 9014(b)). See dkt.31 (last page), dkt.32 (last 4 pages). Specifically, Debtor has not served them "Attn: Officer or Managing/General Director" or the like (see Rule 7004(b)(3) and see also Rule 7004(h)), nor is it clear that Debtor has used addresses where the Officers or other requisite persons are situated (to the contrary, at least one address appears likely to be a PO Box for payments, and this Court takes judicial notice that payment addresses often are different from addresses for service of process).
Second, Debtor has not obtained any declaratory judgment clearing title of the allegedly fraudulent liens, or any other judgment or order that would permit Debtor to ignore the record title showing an interest in cash collateral. Therefore, the disputed liens must be provided with some form of adequate protection. See 11 U.S.C. 105(a), 361, 363(e).
Third, as noted above, Debtor declares, "I will segregate all excess funds in the Debtor in Possession account while a resolution on those claims [is being obtained]." Dkt. 31, p.11, para. 8 (emphasis added). That is insufficient. Commingling funds in the DIP account does not adequately protect the asserted liens. Debtor must establish a separate account to hold all funds in excess of the dollar amounts necessary for insurance, real estate taxes, and any other expenses approved by this Court. Debtor is directed to address at the hearing whether a separate DIP bank account has been established for each property, and if that account is sufficient to segregate cash collateral.
Fourth, although Debtor has checked the box in the Cash Collateral Motion (dkt.31, p.3, section 6) stating that a memorandum of points and authorities is attached if Debtor proposes not to make adequate protection payments, that is false: no such memorandum is attached.
Fifth, the tentative ruling is that an additional condition to establish adequate protection is that Debtor must act diligently in bringing whatever challenges Debtor might have to the asserted liens.
For all of the foregoing reasons, the tentative ruling is that (a) Debtor must segregate all excess funds as set forth above, (b) Debtor must re-serve the motion papers in compliance with Rule 7004 no later than 1/16/20, and (c) Debtor must address at the continued hearing what steps Debtor has taken to
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address the allegedly fraudulent nature of the liens.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and
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other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically
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disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
Movant(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 1
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
First cash collateral motion (dkt.31&32) and second cash collateral motion (dkt. 55&56)
Applicable motion(s)?
At the 1/14/20 hearing, Debtor was directed to re-serve the first cash collateral motion no later than 1/16/20 (see also Tentative Ruling for 1/14/20, reproduced below). Instead, Debtor filed and served the second cash collateral motion, which differs materially from the first cash collateral motion.
It appears that Debtor still may be seeking authorization under the first motion as to two properties (68th Way and Shadow Ln) and authorization under the second motion as to a third property (69th Way). Is that accurate? If not, what is Debtor attempting to do?
Service issues
At the 1/14/20 hearing, this Court noted that the first cash collateral motion was not served in compliance with Rule 7004 (Fed. R. Bankr. P.), and Debtor was directed to reserve that motion no later than 1/16/20. Debtor served the second cash collateral motion instead, and did so on 1/17/20. Dkt. 56.
It appears that Debtor has still not complied with Rule 7004. First, Nationstar Mortgage, LLC dba Mr. Cooper was not served at the address listed on POC No. 4 for notices. Second, CitiMortgage, Inc. filed POC No. 5 alleging a security interest in the 68th Way property, and it was not served with either cash collateral motion.
Allegedly fraudulent liens
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As noted in Debtor's status report, Debtor is (belatedly) seeking
authorization for the postpetition employment of special counsel to pursue an action in state court for fraud and quiet title with respect to allegedly fraudulent liens encumbering the 69th Way and Shadow Lane properties.
Dkt. 57 & 69, p.3:2-4. Debtor has stated an intention to sell the Shadow Lane property but not the 69th Way property. What cost/benefit analysis have Debtor and Debtor's bankruptcy counsel done regarding this litigation?
The holder of the alleged liens appears to be asserting 21% default interest (and a non-default rate of just under 10%) (see dkt.70, p.5:1-6). Of course, all rights are preserved to argue regarding interest rates, but Debtor appears to be gambling on winning the litigation and avoiding the liens and the default interest entirely. In other words, if Debtor is not 100% successful, there appears to be a substantial danger of wiping out any recovery for other creditors and Debtor. Why is Debtor not proposing a course of action that might stop the running of such high rates of interest?
For example, solely for purposes of this tentative ruling this Court presumes (without deciding) that selling the 69th Way property free and clear of the disputed liens, with such liens to attach the proceeds, might stop the running of such interest rates. Alternatively, Debtor might propose a chapter 11 plan that could include alternative treatments of this claim depending on whether the ligitation were or were not successful, and restructuring any secured claims to have a lower interest rate. These are only hypotheticals: again, all rights are preserved to argue whether any such possible solutions would or would not stop the running of these high interest rates, but the point is that Debtor is directed to address why the status report and the docket do not appear to reflect any exploration of methods to avoid what appear to be the large risks of staking everything on Debtor's litigation.
Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") opposition to second cash collateral motion (dkt. 70)
Aztec's opposition notes that Debtor's second cash collateral motion proposes to pay Aztec $2,000/month of the $5,465/month generated by the property, and allocates $1,058.20 to taxes, insurance, and maintenance, but Debtor does not explain what the remaining $2,379.80/month will be used for. Dkt. 70, p.4:24-27. Aztec also disputes Debtor's valuation of the property, and states that Debtor should at least be making the non-default, pre-maturity contractual payment of $4,535.67/month. Id. at p.5:17-28. While the second cash collateral motion states that Debtor's basis for the valuation of the
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property is Debtor's declaration, Debtor's declaration does not address the value of the property. Dkt. 55, p.11. Lastly, Aztec states that it has requested access to the property to arrange its own appraisal. Id. at p.5:21-23.
Tentative ruling on both cash collateral motions
The tentative ruling is to order Debtor to segregate 100% of any rents and profits from each rental property (the 69th Way, Shadow Lane, and 68th Way properties), and hold all such funds - after payment of real estate taxes, insurance, utilities, and essential repairs - in separate blocked accounts until further order of this Court, so as to provide an interim form of adequate protection to Aztec and to other lienholders. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to serve all lienholders with notice of a continued hearing on the cash collateral motions, concurrent with the continued status conference set forth below. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to provide Aztec and all other lienholders with access to the properties for any inspection/appraisal they wish to conduct (or, alternatively, to schedule by 2/25/20 an inspection/appraisal after 2/25/20 at a time that is convenient for the lienholders).
January MOR (dkt. 73)
This MOR (dkt.73, p.17) shows general liability insurance due to expire/only paid through 1/25/20. Has that insurance been extended? Are the MORs up to date?
Prosecution of this case
As set forth above, Debtor's prosecution of this case appears to be inadequate. Cash collateral motions are known as "first day" motions; but Debtor's cash collateral motions have been filed belatedly, served incorrectly (despite this Court's prior direction), and presented in a confusing manner (it is ambiguous whether the second motion supersedes or is in addition to the first motion). Similarly troubling, Debtor's application to employ special counsel has been filed belatedly, and neither that application nor Debtor's status report adequately address the cost/benefit analysis about pursuing that litigation and selling the 69th Way property or otherwise addressing possible methods to stop the running of high interest rates that could wipe out any value in this bankruptcy estate. What assurances can Debtor and Debtor's
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counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Cash collateral motion (dkt.31&32)
Grant in part and deny in part on an interim basis, as set forth in calendar no. 2, 1/14/20 at 1:00 p.m.
Status report
At the hearing on 12/17/19 this Court orally directed Debtor's counsel to file a status report no later than 12/31/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Amended November Monthly Operating Report ("MOR," dkt. 43)
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State court suit
The MOR reflects a $5,000 payment to James A. Judge, Esq. related
to a civil law suit. Dkt. 43, p.9. Debtor also states that "a civil law suite against Aztec Financial (Secured Creditor) is pending." Id. at p.30.
The docket does not reflect any application to employ Mr. Judge as special counsel. In addition, there is no disclosure whether this payment was on account of prepetition or postpetition fees/costs/other charges. Should this Court issue an order directing Mr. Judge to show cause why he should not disgorge that payment and/or why he, Debtor, and/or Debtor's bankruptcy counsel should not have a remedy imposed for expending assets of this bankruptcy estate in violation of the Bankruptcy Code?
Car insurance
The MOR reflects that Debtor's car insurance is due to expire on 12/31/19. Id. at p.26. Has Debtor obtained replacement insurance?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., brief status report due 2/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
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(a) Cash collateral motion (dkt.31-33)
Debtor has self-calendared this motion for 1/14/20 at 1:00 p.m. That is over a month after the petition date.
What is Debtor doing with the cash meanwhile? There may be no good answer: either Debtor is using the cash, in violation of 11 U.S.C. 363(c), or Debtor is not using the cash to pay essential expenses, in violation of Debtor's duties to manage the estate and pay utility bills and other ordinary and necessary expenses in a timely manner (see 11 U.S.C. 1107-08 and 28
U.S.C. 959(b).
Why did Debtor not use the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) to have this matter heard on 14 days' notice, or alternatively apply for an order shortening time if the matter needed to be heard before that 14 day period?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/14/20 at 1:00 p.m., brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20
Docket 1
Tentative Ruling for 2/18/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Debtor's Motion For Order Approving Settlement Agreement Between Debtor And Cathay Bank (dkt. 512)
Debtor's Plan (dkt. 520) and Disclosure Statement (dkt. 521)
Judge Bason will review issues with these documents and address deadlines and procedures regarding any amended documents.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 pm. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 512
Please see the tentative ruling for the status conference (calendar no. 10, 2/18/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
fr. 12/10/19, 1/14/20
Docket 125
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
Docket 1
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20
Docket 5
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith
1:00 PM
Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20
Docket 1
Tentative Ruling for 2/18/20:
Appearances are not required on 2/18/20.
Current issues
Cash collateral motion (dkt. 5, as supplemented, dkt.208) (non- opposition, dkt.209)
Grant on a further interim basis, on the same terms and conditions as previously ordered, except for the revised budget (dkt. 208, Ex.A), through the conclusion of a continued hearing concurrent with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/21/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
[Prior Tentative Rulings omitted]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 71
- NONE LISTED -
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
1:00 PM
Docket 49
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
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Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this
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case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
Docket 85
Please see the tentative ruling for the status conference (Calendar No. 17, 2/18/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
Docket 86
Revised Tentative Ruling for 2/18/20:
Grant the motion (docket no. 86, 90) on an interim basis, subject to the conditions set forth below, with a final hearing on 3/31/20 at 1:00 p.m., and a deadline of 2/25/20 for the movant to file and serve a notice of the final hearing. Appearances are not required on 2/18/20.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of
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the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the
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secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
Docket 5
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor.
Current issues
Cash Collateral Motion (dkt. 73)
Grant in part and deny in part. See the tentative ruling for calendar no.
18.10 (2/18/20 at 1:00 p.m.).
Explanation of business
Debtor's proposed budget (dkt.73, Ex.A) lists wildly fluctuating income, from highs of $45,028 in February 2020 and $37,114 in March 2020 to lows of $2,200 in May and June 2020. Why?
This Court recognizes that the same budget lists historical fluctuations for 2019. The net income ranges from a high of $38,366 in March 2019 to a low of $0 in July and August of 2019, and only $2,500 in June 2019 and
$3,300 in May 2019. Again, however, there is no explanation. In addition, Debtor's Statement Of Financial Affairs (dkt.28, line 1) lists gross revenues of approximately $500,000 per year for 2017, 2018 and 2019. What accounts for (i) the wild fluctuations in net income and (ii) the lack of consistent profit despite substantial and seemingly stable gross annual revenues?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Monthly operating reports ("MORs")
Debtor's MORs have been filed late, and they appear to show unauthorized adequate protection payments (see dkt.68, pp.15, 29) and unpaid US Trustee fees (id., p.30). Why?
Cash collateral
Debtor's initial status report (dkt.27, at PDF pp.3-5) stated that there was no immediate need to obtain authorization for use of cash collateral because Debtor has no employees or operations. Debtor's latest status report (dkt.60, p.3:9-20) sugests that productive negotiations have taken place with the creditor holding an interest in cash collateral and that Debtor intends to self-calendar a motion approving the use of cash collateral for 2/4/20. What is the latest status of those matters?
Employing broker and filing sale motion
Debtor is directed to address the status of its plans to employ a real estate broker, sell its properties (11 U.S.C. 363(b) & (f)). Those things typically are "first day" motions. But as of this continued status conference it will have been two months after the petition date and those matters are not on the calendar. Why not?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
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Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 2/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor (see dkt. 21, excusing debtor's appearance).
Current issues
Has Debtor ceased all operations?
Debtor's status report gives the impression, but does not quite state, that Debtor is not conducting any business operations at this time (dkt. 27, p. 3). Debtor is directed to confirm this, or disclose if that is not so, at the hearing.
Budget motion
Debtor's status report states that a budget motion is not required by the presiding judge's procedures. Dkt. 27, p.5. That is wrong (see posted Procedures, available at cacb.uscourts.gov), but the tentative ruling is to excuse this requirement with a caution to counsel not to mis-state the applicable procedures.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
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Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20. Debtor is directed to appear in person, through its designated representative.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
1:00 PM
Docket 73
Revised Tentative Ruling for 2/18/20:
Grant in part and deny in part the motion (dkt. 73) on an interim basis, subject to the conditions set forth below, with a final hearing on 3/31/20 at 1:00 p.m., and a deadline of 2/25/20 for the movant to file and serve a notice of the final hearing. Appearances required.
Current issues
The tentative ruling is to authorize Debtor to use cash collateral without approving many of the provisions of the proposed stipulation (dkt.73, Ex.A).
First, no evidence or argument in favor of those provisions have been provided, either by Debtor or by Zions Bancorporation, N.A. d/b/a California Bank & Trust ("Lender"). Second, Lender appears to be more than adequately protected by an enormous equity cushion (see Bankruptcy Schedule D, dkt.31, line 2.1, listing estimated lien of $7,124,000.00 as against estimated property value of $27,380,000.00). Third, the provisions appear to be unduly prejudicial to other creditors in the event of Debtor's inability to pay its creditors in full - however seemingly unlikely that may be, if the information provided by Debtor and Lender is to be believed.
More specifically, the tentative ruling is as follows:
Validation of Lender's liens only as against Debtor. Approve only as against Debtor, and not as against any other party in interest, any provisions regarding the validity, priority, and extent of Lender's liens on cash or other collateral, or any provisions waiving setoffs, claims against the Lender, and the like. See, e.g., Agreement sections 1.1 and 2 (dkt.73, Ex.A, pp.4:2-5:9).
Emergencies. Approve the provisions regarding emergency use of cash collateral (Agreement section 3.3(b), dkt.73, Ex.A, p.6:7-19), but without prejudice to Debtor's right (and perhaps obligation) to react to true emergencies without Lender's consent. For example, if Debtor's property
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were on fire, Debtor might be justified in expending more than the $1,000 contemplated by the Agreement (and might have a duty to do so, to protect the estate).
No postpetition liens, except standard replacement liens, and no waiver of section 506(c). Disapprove these provisions, in favor of the standard conditions set forth in the next part of this tentative ruling regarding replacement liens. Debtor and Lender have not established any legal or factual basis for "cross-collateralization," or liens on avoidance actions or recoveries under 11 U.S.C. 506(c). Nor have Debtor and Lender established grounds to waive the bankruptcy estate's rights under 11 U.S.C. 506(c). See Agreement sections 4 & 10 (dkt.73, Ex.A, pp.7:10-8:27, & 11:24-27).
Superpriority under section 507(b) is not a lien. Disapprove the provisions of the Agreement that purport to treat the superpriority under 11
U.S.C. 507(b) as if it had "the same priority as the Replacement Lien as set forth in this Stipulation" (dkt.73, Ex.A, p.11:22-23) and/or with a priority over Debtor's rights under 11 U.S.C. 506(c). Lender is directed at the hearing to address what legal theory justifies treating a superpriority administrative claim as if it were a lien.
No bar on future Court authorization. Notwithstanding anything in the Stipulation or Motion to the contrary, no approval of its terms shall prevent this Court from authorizing the use of cash collateral in future on terms other than as set forth therein, or other than as provided above.
Debtor is directed at the hearing to explain why Debtor's disclosures (dkt.75) failed to dislose the provisions for cross-collateralization.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
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Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this
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order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to
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address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
1:00 PM
Docket 22
Appearances required by Hyundai. There is no tentative ruling. This Court has reviewed Hyundai's response (dkt.26) to this Court's "Order Directing Hyundai Capital America dba Kia Motors Finance to Appear and Show Cause Why This Court Should Not Impose Sanctions" (the "OSC," dkt. 22). The parties should be prepared to address the issues raised in the OSC and Hyundai's response.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Toya Emealda Johnson Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
1:00 PM
BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Revised Tentative Ruling for 2/18/20:
Grant in part the motion of Beverly Partners, LLC ("Beverly") for relief from automatic stay (dkt. 47). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Based on the motion papers, Debtor's opposition papers (dkt. 50), and Beverly's reply (dkt. 53), the tentative ruling is to modify the automatic stay to set deadlines - further described below - for Debtor to take steps to market and sell the property at 10838-10842 Beverly Blvd., Whittier, CA 90601 (the "Property"). This Court recognizes that Debtor has characterized the Property as his retirement security, but the tentative ruling is that there is no other way to provide adequate protection of Beverly's interest in the Property.
(1) Valuation
The tentative ruling is that Beverly's evidence is persuasive as to including a higher property tax assessment for valuation purposes (see Eggleston Reply
Decl., dkt.53, p.3:1-13) and that, with this adjustment, Debtor's approach to valuation would yield a value of $850,000 (id., p.3:14-17). Beverly's
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appraisal, in contrast, asserts a value of $795,000. See dkt.47, at PDF pp.77-end, and dkt. 53, p.3:18-21.
The tentative ruling is that the other evidence provided by Debtor and Beverly (e.g., as to appropriate discount rates, and the use of allegedly comparable properties) does not weigh in one direction or the other clearly enough for this Court to decide between the two valuations without an evidentiary hearing (or, perhaps, further declarations). Compare Eggleston Decl. (dkt.79, pp.79 et seq.) and Eggleston Reply Decl. (dkt.53) with Collins Appraisal (dkt.50, Ex.A) and Collins Decl. (dkt.50, pp.13 et seq.). Therefore, the remainder of this tentative ruling considers both valuations.
(2) 11 U.S.C. 362(d)(1)
Under section 362(d)(1) this Court must consider any lack of adequate protection (or other "cause" for relief). One form of adequate protection is a sufficient equity cushion.
The tentative ruling is that, unless an equity cushion is very large, an eroding equity cushion may place Bevery's interest in the Property at greater risk. Therefore, this Court must consider Beverly's equity cushion (if any), both as of the petition date (8/30/19) and currently.
In calculating that equity cushion the tentative ruling is that this Court must consider (i) the senior real estate tax lien (Claim No.2-3) of $22,417.08 as of the petition date, plus postpetition interest at 18% for the current calculation (id., p.2, line 9), plus (ii) Beverly's lien of approximately
$721,702.10 as of the petition date, or approximately $741,879.34 as of 11/7/19 (dkt.47, pp.7 & 11), plus postpetition interest at 17% for the current calculation (id., Ex.H, at PDF p.141) (POC 5-1, line 9), plus (iii) any other charges that are allowable under 11 U.S.C. 506(b) (e.g., ongoing attorney fees), minus (iv) adequate protection payments (3 x $3,313.63 through Beverly's 12/3/19 Reply, dkt.dkt.53, p.2:15, plus two more payments for January and February, for a total of 5x$3,313.63 = $16,586.15).
Based on these numbers, the tentative ruling is that, even using Debtor's valuation method (adjusted as set forth above), the combination of a modest equity cushion (substantially below 20%) and the current (low) adequate protection payments (very substantially below the contractual default or non-default interest rates) are insufficient. They do not provide Beverly with protection of its interest that is truly "adequate" as required by section 362(d)(1).
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Therefore this Court "shall" grant some form of relief from the
automatic stay. 11 U.S.C. 362(d). That relief need not necessarily be termination of the automatic stay: it can take the form of modifying or conditioning the automatic stay. Id. The tentative ruling is that, because Beverly itself would have to take time to market and sell the Property (if it were to attempt to maximize value and not risk its own recovery), Beverly will be adequately protected by providing Debtor with time in which to do the same.
Amount of time to market and sell the property
The tentative ruling is to set deadlines of (a) 2/28/20 for Debtor to file and serve an application to employ a real estate agent for the Property, (b) 4/24/20 for Debtor to file and serve a motion under 11 U.S.C. 363(b) and (f) to sell the Property, subject to overbids, (c) 5/19/20 for a hearing (and auction, if there are any overbidders), and (d) 6/23/20 to close the sale (either to the winning bidder or a backup bidder) and pay Beverly out of escrow. If Debtor fails to meet those deadlines, the tentative ruling is that Beverly would be authorized to file and serve a declaration of default and lodge a proposed order terminating the automatic stay.
Meanwhile, the tentative ruling is to monitor Debtor's progress by setting a continued hearing on this motion to the same time as the continued status conference (see calendar no. 23, 2/18/20 at 1:00 p.m.).
(4) 11 U.S.C. 362(d)(2)
The tentative ruling is that for purposes of section 362(d)(2)(A) (whether Debtor has any equity in the Property) this Court must take into account the IRS lien (Claim No.7-1) of $64,423.96 as of the petition date (id. at PDF pp.2&4-10), plus postpetition interest of 5% for the current calculation. This Court notes that the IRS claim is secured by any property owned by Debtor, but there is no evidence that equity in any other property will decrease the amount of this claim.
The result would be that under Beverly's valuation Debtor would have no equity in the property, but under Debtor's valuation he would have some equity. Because the burden of proof is on Beverly on this issue (11 U.S.C. 362(g)(1)), the tentative ruling is that on the present record Beverly has not established an entitlement to relief under section 362(d)(2). All rights are reserved for Beverly to continue seeking to establish that element with
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additional evidence, and for Debtor to oppose any such evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By Simon Aron
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fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20
Docket 19
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's
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order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees,
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charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the
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case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
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Docket 63
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
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fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20
Docket 1
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Order To Show Cause Re Service Of Bar Date Order (the "OSC," dkt. 63)
Discharge the OSC based on Debtor's fourth amended proof of service (dkt.89) and supporting declaration (dkt.90).
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Grant in part, as set forth in the tentative ruling for calendar no. 20 (2/18/20 at 1:00 p.m.), with a continued hearing contemporaneous with the continued status conference (see below).
(c) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
Grant on a further interim basis, on the same terms as this Court's
prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
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Continued status conference: 3/31/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference. Reasons: This Court's posted tentative ruling prior to the hearing scheduled for 12/10/19 (reproduced below) was not contested, and therefore it was adopted as this Court's ruling. The ruling was: "to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to [i] serve all required persons with notice of the continued hearing, and [ii] file a proof of service." (Emphasis added.) Beverly has done the latter (dkt.54) but not the former.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61) Grant on a final basis.
Deadlines/dates. This case was filed on 8/30/19.
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Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required. on 12/10/19, but Debtor and Beverly Partners, LLC ("Beverly") are directed, well ahead of the continued hearing date set forth below, to take whatever steps are necessary or appropriate to address the issues set forth below (e.g., correcting service and/or proofs of service, lodging proposed order(s), filing corrected MORs, etc.).
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Beverly's proof of service does not show service on the list of creditors included in Debtor's "list filed under Rule 1007(d)" (as required by Rule 4001(a)(1), Fed. R. Bankr. P.). See dkt. 1. The tentative ruling is to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to serve all required persons with notice of the continued hearing, and file a proof of service.
Cash collateral motion (dkt.19)
No proposed order has been lodged - at the hearing on 10/1/19 this
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Court directed counsel to lodge a proposed order granting the motion on an interim basis and attaching (and adopting) a copy of this Court's tentative ruling for that date (available at www.cacb.uscourts.gov). In addition, Debtor did not file and serve a notice of the final hearing by 10/3/19. In addition, any such service would have to be in compliance with the applicable rules for service, as stated in that adopted tentative ruling.
The current tentative ruling is (i) to direct counsel, again, to lodge a proposed order granting the motion on an interim basis through the conclusion of the final hearing, (ii) to set a final hearing for the same date and time as the continued status conference (see below), and (iii) to set a deadline of 12/11/19 for Debtor to file and serve notice of the final hearing in compliance with the applicable rules for service.
Proof of service of bar date order (dkt.28)
Debtor's counsel has had trouble with service of this order and/or proving that it was served as required. See dkt. 35,36,37. Even the latest, second amended proof of service (dkt.37) is inadequate in that it fails to state who actually served the order and when they did so. Implicitly, the person who signed the proof of service, Paulina Buitron, is the person who actually deposited the envelopes in the U.S. mail, and that was done sometime between 9/30/19, when the order was supposed to have been served, and 10/3/19, when the proof of service was filed, but the declaration does not actually say so. In addition, at the hearing on 10/1/19 this Court directed Debtor's counsel to double-check that all creditors had in fact been served and, if not, to apply for an order setting a supplemental bar date as to any creditors who have not been served.
The tentative ruling is to excuse what appears to be untimely service of the bar date order by a few days, and set a deadline of 12/11/19 (i) for Debtor's counsel to file a third amended proof of service of the bar date order, using the local form (mandatory for all motions) (see Local Form
F9013-3.1.PROOF.SERVICE), (ii) to lodge a proposed order excusing the untimely service of the bar date order, with a copy of this tentative ruling attached, and (iii) if necessary, apply for a supplemental bar date for any creditors who were not served with the bar date order, and lodge a proposed supplemental bar date order.
Debtor's Monthly Operating Reports ("MORs")
Debtor appears to be having trouble complying with his obligations as a debtor in possession, including not paying prepetition debts. In addition,
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the October MOR (dkt.49) appears to show lossess from most of Debtor's various businesses, and perilously low bank balances, even with the reduced dollar amount of the adequate protection payments to Beverly (less than the ongoing interest obligation). In addition, there is an internal inconsistency about postpetition adequate protection and/or lease payments: the October MOR (dkt.49, at PDF p.57 of 61) lists "0" postpetition payments not made (i.e., Debtor allegedly is postpetition current), but then the same table lists "Total Due" postpetition amounts of many thousands of dollars - which is it? Is Debtor postpetition current in payments to secured creditors and/or lessors, or not?
The tentative ruling is to direct Debtor (i) to confer with the Office of the United States Trustee and file whatever corrected MORs are necessary or appropriate, and (ii) to be prepared to address the foregoing issues at the continued status conference.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28; see above)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/17/19 at 1:00 p.m. (short continuance because Beverly's motion for relief from the automatic stay should be addressed soon). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
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[N/A: continued to 12/10/19 (dkt.43)]
Tentative Ruling for 10/1/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Cash collateral motion
Grant (subject to this Court's standard conditions, see calendar no.1, 10/1/19 at 1:00 p.m.), provided that Debtor must address why this motion was not self-calendared for hearing until over a month after the petition date, and whether, meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Budget Motion
Debtor's status report incorrectly states that a budget motion is not required by the presiding judge's procedures. Dkt. 20, p.3. See posted Procedures of Judge Bason (available at cacb.uscourts.gov) (the "Bason Procedures") Section VII.G. In addition, a budget motion appears to be particularly important in this case because most of Debtor's income and expenses are effectively hidden and/or mis-reported.
Debtor's Bankruptcy Schedule I reports that he is an interior designer/hair stylist (dkt.22, at PDF p.27), his Statement Of Financial Affairs ("SOFA") lists various "dba" enterprises that might or might not reflect other business ventures, and Debtor apparently rents out some of his properties using Airbnb, but there is no breakdown of any of this. Contrary to the instructions on line 8a of Schedule I, debtor lists only a total net dollar amount for all businesses/properties combined - $22,598.00 per month - and fails to attach a statement for each business/property showing gross receipts, ordinary and necessary business expenses, and the calculation of net income. Also, in apparent contradiction of this alleged monthly net income, the SOFA (dkt. 22 at PDF p.31) lists gross income of $20,000 for the year to date (9 months), $7,875 for 2018, and $28,223 for 2017. (Perhaps Debtor listed monthly net income instead of yearly gross income - if so he must file a corrected SOFA.)
The tentative ruling is to direct Debtor to file an amended Schedule I and an amended SOFA, and to file and serve a budget motion and any other documents that are necessary or appropriate to correct the foregoing deficiencies, no later than 9/27/19.
Bankruptcy Schedule G
Debtor lists no executory contracts or unexpired leases (dkt.22, at PDF p.24). What about Airbnb and/or other short-term or long-term rental arrangements? The tentative ruling is to direct Debtor to file an amended Schedule G no later than 9/27/19.
Cash collateral
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Even though this case was filed on 8/30/19, Debtor did not self-
calendar his cash collateral motion for hearing until over a month later, on 10/1/19 at 1:00 p.m. Meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Employment Application
The tentative ruling is to set a deadline of 9/27/19 for Debtor to file and serve local form F 2014-1.STMT.DISINTERESTED.PROF in support of Debtor's application to employ Eric Bensamochan as his bankruptcy counsel (dkt. 18). See Bason Procedures Section VII.D.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/1/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
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Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19, 1/14/20
Docket 1
Tentative Ruling for 2/18/20:
Continue this status conference as set forth below. This Court has reviewed the Plaintiff's status report (adv. dkt. 33), and has no issues that would require a status conference at this time. Appearances are not required on 2/18/20.
Current issues N/A
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/31/20 Continued status conference: 4/7/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial
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Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue this status conference as set forth below. This Court has reviewed the Plaintiff's status report (adv. dkt. 28), and has no issues that would require a status conference at this time. Appearances are not required on 1/14/20.
Current issues
Order on Debtor/Defendant's Motion To Set Asie Entry Of Default (adv. dkt. 19)
At the 12/17/19 hearing, this Court denied Debtor's motion. While the docket reflects a notice of lodgement related to the motion (adv. dkt. 27), no order has actually been lodged.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after this hearing date, and attach a copy of this Court's 12/17/19 tentative ruling, thereby incorporating it as this Court's final ruling, for the reasons stated therein and at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A
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Dispositive motions to be heard no later than: N/A Joint Status Report: 2/11/20
Continued status conference: 2/18/20 Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Debtor/Defendant's motion to set aside entry of default (adv. dkt. 19), Plaintiff's opposition (adv. dkt. 25), and Debtor/Defendant's reply (adv. dkt. 26)
Deny without prejudice for the reasons set forth below.
The 9th Circuit employs a three-part test to determine whether or not "good cause" exists to set aside entry of default under Rule 55(c) (Fed. R. Civ. P.), made applicable in adversary proceedings by Rule 7055 (Fed. R. Bankr. P.). The three factors are:
whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice the other party. [United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d
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1085, 1091 (9th Cir. 2010) (internal quotation and citation omitted).]
This standard is disjunctive, such that a finding that any one of the
above factors is true is sufficient reason to refuse to set aside the default. Id.
Whether Debtor engaged in culpable conduct that led to the
default
Debtor provides three explanations for why she was not culpable - (1) her prior counsel withdrew on 8/6/19, shortly before her answer was due (on 8/14/19), and prior counsel never filed an answer, (2) a series of exigent personal matters, and (3) that she is not an attorney and is unfamiliar with the details and formalities of litigation deadlines. Adv. dkt. 19, p.4:11-14 and p.4:21-27.
Debtor did not file the instant motion (11/17/19) until almost three months after default was entered against her (8/20/19, adv. dkt. 9). See adv. dkt. 25, p.5:13-16. Debtor has not explained why the above three explanations excuse a three month delay in filing the motion. Was Debtor interviewing lawyers during that time? Debtor also does not provide any specific dates of her exigent personal matters that demonstrate there was a direct relationship between those events and Debtor's mental state at the time the answer was due. See adv. dkt. 25, p.6:10-12. For example, did Debtor visit a doctor or other professionals to address those exigent personal circumstances? While Debtor might not be an attorney familiar with litigation deadlines, immediately after default was entered she enlisted her state court attorney to assist in having the default set aside. Adv. dkt. 19, p.3:25-p.4:1.
Was Debtor similarly aware of the answer deadline?
The tentative ruling is that Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, which is sufficient grounds for denying her motion.
Whether Debtor has meritorious defenses to the causes of action in the adversary proceeding
Debtor's motion explains that Debtor has meritorious defenses to the causes of action in the underlying state court action. Adv. dkt. 19, p.6:13-7:8. Plaintiff's opposition explains that Debtor's motion does not address defenses to Plaintiff's objections to dischargeability, which are the matters at issue in this adversary proceeding. Adv. dkt. 25, p.6:23-25. Debtor's reply states that because the state court actions have not been finally adjudicated, there is no debt owed to Plaintiff by Debtor that the court can make a determination on
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regarding dischargeability. Adv. dkt. 26, p.4:7-10.
Debtor is incorrect as to Debtor not owing Plaintiff a debt. Plaintiff's complaint explains that Plaintiff's fees and costs award was affirmed on appeal and the abstract of judgment was recorded on 7/19/18. Adv. dkt. 1, p.11, paras. 33-34. Plaintiff's complaint further alleges that Debtor's action to allegedly prevent collection of the judgment is grounds for denying Debtor her discharge under 11 U.S.C. 727. Id. at p.12, para. 44. Debtor's motion does not provide any meritorious defenses to this cause of action. Moreover, in order to defeat Plaintiff's cause of action on this issue, Debtor would need to meet the burden of proof for a motion for reconsideration. It appears Debtor would have a very difficult time meeting this standard, especially in light of Debtor's admission that the lien which eats up all the equity in Debtor's property that might otherwise be used to pay the judgment is a sham. See dkt. 142, p.3:1-3; adv. dkt. 25, p.7:26-p.8:1.
The tentative ruling is that Debtor has not provided any meritorious defenses to that portion of the adversary proceeding, which is a sufficient ground to deny her motion as currently presented. The tentative ruling is that it is premature to address whether Debtor has meritorious defenses with respect to the remainder of the adversary proceeding, because that may be mooted by the issue- or claim-preclusive effect of the actions that are proceeding in nonbankruptcy court.
Whether reopening the default judgment will prejudice
Plaintiff
Debtor aruges that Plaintiff will not be prejudiced is this Court grants her requested relief because moving forward on the merits after "only a short delay" should not prejudice Plaintiff's ability to litigate her case. Adv. dkt. 19, p.7:10-22. Plaintiff says that she will be prejudiced because the history of Debtor's bankruptcy case evidences a patter of fraudulent actions by Debtor to hinder Plaintiff's prosecution of the state court cases. Adv. dkt. 25,
p.7:25-26.
While this Court agrees with Plaintiff that there appears to have been fraud re the $5 million recorded lien on Debtor's property, Plaintiff has not explained the basis for her assertion that now that Debtor is in bankruptcy the same sort of fraudulent behavior is likely to occur.
The tentative ruling is that granting Debtor's motion will not prejudice Plaintiff.
Conclusion
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The tentative ruling is that while granting Debtor's motion may not
prejudice Plaintiff, Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, and she has not explained what her meritorious defenses to the causes of action in this adversary proceeding are, so this Court is denying Debtor's motion without prejudice.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/31/19 Continued status conference: 1/14/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Continue this status conference as set forth below. This Court has reviewed Plaintiff's latest status report (adv. dkt. 15) and is not aware of any issues that warrant a status conference at this time. Appearances are not required on 11/12/19.
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 12/17/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed Plaintiff's unilateral status report (adv. dkt. 11) and the other filed documents and records in this adversary proceeding.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
Preliminary matters: continuance
Plaintiff's Status Report notes (a) that a Clerk's Default was entered in this case on 8/20/19 (adv. dkt. 9) and (b) that she will either seek relief from the automatic stay to proceed with defamation actions in nonbankruptcy court and/or seek a default judgment in this adversary proceeding. The tentative ruling is to continue this Status Conference as set forth below, at which time this Court can assess what progress has been made on those issues. Note: In addition, this Court will hold a Status Conference concurrent with any other hearing in this adversary proceeding (including any self-calendared hearings).
Standard matters
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
Plaintiff is directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the
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Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 11/12/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 1
Revised Tentative Ruling for 2/18/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
As set forth in this Court's order setting this hearing (dkt.129), Debtor did not file her status report or appear at the post-confirmation hearing on 11/12/19, as required by the Confirmation Order (dkt. 117). Debtor belatedly filed a status report (dkt.131, filed 12/6/19) from which it appears that, by then, Debtor was current in her obligations under her confirmed Plan.
Debtor is directed to address why she did not file a timely status report or appear at the prior scheduled status conference, and when she expects to file an application for a final decree. Meanwhile, the tentative ruling is to continue this status conference to 6/30/20 at 1:00 p.m., with no written status report required, and with the expectation this Court will issue a final decree before then and then that status conference will go off calendar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 11/12/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
This Court's order confirming Debtor's plan (dkt. 117) directed Debtor to file a status report by 10/29/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The tentative ruling is to continue this status conference to 2/18/19 at 1:00 p.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
services and prohibiting alteration, refusal or discontinuance of utility services
Docket 10
Please see the tentative ruling for the status conference (calendar no. 29, 2/18/20 at 1:00 p.m.)
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
1:00 PM
Use of cash collateral on an interim basis; and (2) Setting final hearing on use of cash collateral
Docket 11
Revised Tentative Ruling for 2/18/20:
Grant the motion (docket no. 11) on an interim basis, subject to the following conditions. Appearances required.
Conditions
Debtor must provide proof of service of the motion papers and this Court's order shortening time ("OST," dkt.14) as directed in the OST, including expedited service on any persons asserting an interest in cash collateral, such that the papers would be received no later than 2/13/20 at noon.
hearing.
Any tentative relief herein is subject to any opposition at the
Any authorization to use cash collateral is subject to the
conditions set forth below, with a final hearing on 3/3/20 at 1:00 p.m., and a deadline of 2/19/20 for the movant to file and serve a notice of the final hearing.
Any party asserting an interest in cash collateral is granted a replacement lien to the same extent provided in part "(3)" of the "standard conditions" set forth below.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by
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reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar
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phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
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In the event of any disputes regarding the rulings in this order, the
parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
1:00 PM
or benefits and payroll obligations to paychex as a necessary vendor nunc pro tunc to the extent necessary
Docket 12
Please see the tentative ruling for the status conference (calendar no. 29, 2/18/20 at 1:00 p.m.)
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
1:00 PM
Docket 1
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Proofs of service re orders shortening time
This Court's orders shortening time (dkt. 13-15) directed Debtor to file a proof of service evidencing service of those orders no later than 2/13/20 at 5:00 p.m. As of the drafting of this tenative ruling, no such proofs of service have been filed.
Debtor is directed to address whether the three motions discussed below were timely served.
Debtor's Utility Motion (dkt. 10)
Grant, subject to any opposition at the hearing and to resolution of the service issues described above.
Debtor's Cash Collateral Motion (dkt. 11, 19)
Grant on an interim basis, on the conditions set forth in calendar no.
27, 2/18/20 at 1:00 p.m., subject to any opposition at the hearing, and subject to resolution of the service issues described above. A continued hearing will be held contemporaneous with the continued status conference (see below).
Debtor's Wage Motion (dkt. 12)
Grant, subject to any opposition at the hearing, and subject to resolution of the service issues described above.
Continued status conference
As set forth in this Court's Order Setting (A) Principal Status Conference And (B) Procedures, a continued status conference, which will be the principal status conferece, will taken place on 3/3/20 at 1:00 p.m.
Proposed orders: Movant is directed to lodge proposed orders on the above matters (2)-(4), via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
2:00 PM
Docket 71
- NONE LISTED -
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
2:00 PM
Docket 31
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 26
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
TIMESHARE RELIEF, INC. Represented By
William H Brownstein
Trustee(s):
Wesley H Avery (TR) Pro Se
2:00 PM
fr. 12/17/19, 1/14/20, 01/28/20, 2/4/20
Docket 66
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 5, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference (calendar no. 17, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 20, 12/17/19 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20
Docket 43
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
2:00 PM
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Docket 133
Please see the tentative ruling for the status conference (calendar no. 5, 2/18/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Docket 11
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Business Solutions, Inc., et. al. Be Consolidated and Tried Together fr. 1/14/20, 01/28/20, 2/4/20
Docket 2
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy (calendar no. 14, 1/28/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
Glenn J. Chaffin Pro Se
2:00 PM
Movant(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Docket 467
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20
Docket 422
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Rosendo Gonzalez (TR) Represented By
2:00 PM
James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
fr. 12/10/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20
Docket 428
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20
Docket 332
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20
Docket 1
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the main case status conference (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the main case status conference (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the main case status conference (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the main case status conference (calendar no. 12, 11/5/19 at 2:00 p.m.).
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the adversary status conference (calendar no. 16, 9/24/19 at 2:00 p.m.).
Tentative Ruling for 8/20/19:
Please see tentative ruling for the adversary status conference (calendar no. 15, 8/20/19 at 2:00 p.m.).
2:00 PM
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
At the 6/4/19 hearing this Court took the Motion for Summary Judgment (adv. dkt. 98) under submission and anticipates issuing an order at a later time.
Tentative Ruling for 6/4/19:
[No tentative ruling was posted]
Tentative Ruling forn 5/21/19:
Appearances are not required on 5/21/19. The tentative ruling is to continue the hearings in these related adversary proceedings (calendar no. 13 & 14, 5/21/19) to the date of the continued status conference (see below).
Current issues
The tentative ruling on the Motion to Compel (dkt. 104) and the Order to Show Cause ("OSC," dkt. 107) is to continue these matters as requested in the response of Aston Business Solutions, Inc. (dkt. 110, 111). This Court contemplates that the deadlines for completion of discovery and other matters will need to be extended, and the parties are directed to meet and confer and, if they can agree to new deadlines, lodge a proposed order. If they cannot agree, this Court anticipates setting new deadlines at the continued status conference.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
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Joint Status Report: N/A
Continued status conference: 6/11/19 at 2:00 p.m. No written status
report required.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/19:
Continue as set forth below. Appearances are not required on 4/30/19.
This Court has reveiewed the latest filed documents in this adversary proceeding and is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90).
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Dispositive motions to be heard no later than: TBD Joint Status Report: N/A
Continued status conference: 5/21/19 at 11:00 a.m., with a brief status report due by 5/7/19.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Supplemental Tentative Ruling for 4/9/19:
The original tentative ruling (below) provides two inconsistent dates for a continued status conference: 4/30/19 at 11:00 a.m., 4/7/19 at 11:00 a.m.
The latter [should be "former"] is correct. No status report required.
Tentative Ruling for 4/9/19:
Deny the motion to quash (with the possible exception of one aspect), address procedural issues, and then continue this Status Conference, all as set forth below. Appearances required.
Current issues:
Procedures
Please see the tentative ruling for the main case status conference (calendar no. 10, 4/9/19 at 11:00 a.m.)
Motion to Quash (adv. dkt. 84)
The tentative ruling is that the motion to quash (adv. dkt. 84) by Aston
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Business Solutions, Inc. ("ABS") is unpersuasive, except perhaps for limitations as to time, which the parties are directed to address at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Analysis re motion to quash
ABS asserts only vague objections:
Competitors?
ABS asserts that it and Plaintiff are competitors. How so?
The motion does not even disclose ABS' business. Is it a timeshare owner? Is it a timeshare operator? Is it something else? (As noted below, this Court expects that it has gleaned the answer from other documents, but the tentative ruling is that this lack of even such basic information in the motion is fatal to this argument.)
Protected information?
ABS alleges that some sort of trade secrets or other confidential, privileged, or other type of protected information is involved. What sort of information? Why would a traditional privilege log and other tools be inadequate?
ABS complains that parties in interest in this bankruptcy case have shared information. But ABS fails to point to any prohibition on sharing information.
Burden?
ABS alleges that the requested discovery is unduly burdensome. How so? Is it stored in thousands of boxes of paper files that are difficult to reach and review for some reason?
Vagueness and overbredth?
ABS alleges that the discovery requests are vague and overbroad. How so? ABS fails to provide any explanation or evidence to support this allegations.
Discussion
Based on a question (not an answer) in excerpts from the deposition of ABS' President and shareholder, Glenn Chaffin, ABS may be a marketing company for "timeshare exit companies." Adv. dkt. 84, Ex.1 (Depo. Tr.
1/24/19), p.95:22-23. But how does that make ABS a "competitor" of Plaintiff,
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with information that would constitute trade secrets, as opposed to a faciliatator of (possibly) legitimate ways to exit timeshares, who sends out non-secret flyers and other publicly known marketing materials, and assists timeshare members in navigating contracts that are known to all the parties?
Such a facilitator theoretically could benefit Plaintiff, by replacing non- paying or troubled members with paying ones - unless, of course, ABS engages in acts that improperly interfere with contractual relations or otherwise assists in the wrongdoing of which Plaintiff accuses Defendants.
Plaintiff's discovery appears to be targeted at discovering information that could lead to admissible evidence on this and other relevant issues.
Accordingly, the discovery appears to be entirely proper and appropriate, with the possible exception of the movant's request to impose some limitations as to time, which the parties are directed to address at the hearing.
Adversary proceeding status conference issues
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90).
Continued status conference: 4/30/19 at 11:00 a.m., no status report required.
Dispositive motions to be heard no later than: TBD Joint Status Report: N/A
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No. 2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB, dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
2:00 PM
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/19:
Continue as set forth below. Appearances are not required on 3/26/19.
This Court has reveiewed the latest filed documents in this adversary proceeding, includings the parties' status reports (dkt. 89, 91). This Court is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No.
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2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB, dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/26/19:
This Court has reviewed the parties' joint status reports (dkt. 74, 75) and the other filed documents and records in this adversary proceeding. It appears there is little to address at this status conference, but this Court is requiring appearances to assure that this matter is moving forward. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 4/15/19 (adv. dkt. 59). Expert(s) - deadline for reports: 4/29/19 (adv. dkt. 59).
Expert(s) - deadline for rebuttal reports: 5/27/19 (adv. dkt. 59).
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Dispositive motions shall be filed no later than: 7/1/19 (adv. dkt. 59). Dispositive motions to be heard no later than: TBD
Joint Status Report: 3/12/19.
Continued status conference: 3/26/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/29/19:
Continue to 2/26/19 at 11:00 a.m., in view of the extended deadlines (adv. dkt. 59) and the anticipated motion for joint administration with a case before Judge Russell (adv. dkt. 74). Appearances are not required on 1/29/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
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Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01551 Wyndham Vacation Resorts, Inc. v. Martin
fr. 01/09/18, 1/30/18, 4/9/19; 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19, 9/24/19, 11/12/19, 12/17/19,
1/14/20, 01/28/20, 2/4/20
Docket 1
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 12, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 7, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 27, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 17, 11/12/19 at 2:00 p.m.).
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the status conference in the related adversary proceeding (calendar no. 16, 9/24/19 at 2:00 p.m.).
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 18, 8/20/19 at 2:00 p.m.).
2:00 PM
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 18, 7/2/19 at 2:00 p.m.).
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 9, 6/4/19 at 2:00 p.m.).
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the adversary proceeding with which this proceeding is being jointly administered (calendar no. 14, 5/21/19 at 2:00 p.m.).
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the adversary proceeding this proceeding is being jointly administered with (calendar no. 5, 4/30/19 at 11:00 a.m.).
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the main case status conference (calendar no. 10, 4/9/19 at 11:00 a.m.)
Tentative Ruling for 1/30/18:
Appearances required. The court has reviewed the parties' filed documents and records in this adversary proceeding. The parties must address (a) why they failed to file the required status report, (b) why the motions for joint administration/consolidation of the two closely related adversary proceedings have not been prosecuted, and (c) the following issues. The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or
2:00 PM
judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not formalize the fact that the pending mediation includes this adversary proceeding by issuing an order to mediate this matter together with related adversary proceeding (2:17-ap-01229-NB)? The tentative ruling is to direct counsel for the defendants to lodge a proposed order to that effect.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
2:00 PM
Defendant(s):
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Brian C. Vanderhoof Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:19-01156 Gonzalez v. Karen et al
fr. 7/30/19, 9/24/19, 10/29/19, 12/10/19, 12/17/19, 1/14/20
Docket 1
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Continue to 2/18/20 at 2:00 p.m. for the parties to document their settlement (see Mediator's report, adv.dkt.28) and, if necessary or appropriate, file a motion for approval of their settlement under Rule 9019 (Fed. R. Bankr. P.) or any other appropriate papers. Appearances are not required on 1/14/20.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David M. Karen Represented By Keith S Dobbins
DK Law Group, LLP Represented By Keith S Dobbins
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
2:00 PM
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/7/19, 1/14/20, 01/28/20, 2/4/20
Docket 80
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 16, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the status conference (calendar no. 9, 1/14/20 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
2:00 PM
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Movant(s):
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20
Docket 1
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 12/4/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Trustee's emergency motion for an order allowing Trustee to ascertain and preserve the status quo condition of Aston Business Solutions, Inc. (adv. dkt. 82)
There is no tentative ruling, but the first issue this Court will address is whether to hear the merits of the motion on such an expedited schedule.
Then, if appropriate, this Court will address the merits of the motion and any
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oral or written opposition and reply.
Status Conference in Adversary Proceeding (2:17-ap-01545-NB)
Continue this status conference to 12/17/19 at 2:00 p.m., to be concurrent with other matters.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior tentative rulings omitted]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
2:00 PM
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
10:00 AM
Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Cont'd hrg re: Motion for Dismissal and Other Related Sanctions Against Plaintiff Twisted Oliver Holdings, LLC fr. 01/02/20, 2/5/20
Docket 22
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
9:00 AM
Adv#: 2:18-01158 Duff v. Quinn
Docket 1
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Pro Se
Plaintiff(s):
James T Duff Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
8:30 AM
on principal residence [11 U.S.C. section 506(d)]
Docket 59
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Corona Represented By Sam Benevento
Movant(s):
Catalina Corona Represented By Sam Benevento
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
11 U.S.C. section 522(f) (real property)
Docket 18
Deny, because Debtor improperly includes costs of sale (estimated at 8%), and if those are not included then the subject lien does not impair Debtor's homestead exemption, even using Debtor's valuation and other numbers. Appearances are not required.
Key documents reviewed (in addition to motion papers): Opposition papers (dkt.22, 23) of Reape-Rickett, P.C. ("Lienholder"); Debtor's notice of hearing (dkt. 27). No reply is on file
Current issues
Costs of sale are not proper deductions
Under 11 U.S.C. 506(a)(1), the value of property "shall be determined in light of ... the proposed disposition or use of such property ...." Debtor proposes to retain the property at issue, not sell it, so it is inappropriate to deduct costs of sale. See In re Case, 115 B.R. 666, 669-70 (9th Cir. BAP 1990) (unlike "adequate protection" calculation, which can include costs of sale, "when the debtor plans to retain the property, selling costs should not be deducted from the fair market value of the property when valuing the creditor's interest in the property").
Without deducting costs of sale, Debtor's own figures require denial of the motion
Debtor values the property at $480,000.00 (before deducting costs of sale). Debtor asserts that the balances owed on the first and second liens are $351,157.48 and $33,694.75, plus a homestead exemption of $75,000, for a total of $459,852.23. That total is less than $480,000.00, so the lien cannot be avoided under the formula in 11 U.S.C. 522(f)(2)(A).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kerri L Garrison Represented By Summer M Shaw
Movant(s):
Kerri L Garrison Represented By Summer M Shaw Summer M Shaw
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
- NONE LISTED -
Debtor(s):
Christopher Roark Represented By
Ramiro Flores Munoz
Movant(s):
Christopher Roark Represented By
Ramiro Flores Munoz Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments
Docket 36
Appearances required. There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michelle Marie Abejero Represented By
Hasmik Jasmine Papian
Movant(s):
Michelle Marie Abejero Represented By
Hasmik Jasmine Papian Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
and (w) to modify plan or suspend plan payments
Docket 51
Appearances required. There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kip Scott Rolfe Represented By Thomas B Ure
Movant(s):
Kip Scott Rolfe Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Deny. Appearances are not required.
Key documents reviewed (in addition to motion papers): Opposition (dkt.49); Reply (dkt.57).
Debtor has not cited any authority that this Court has the power to compel lenders (if they timely object) to grant loan modifications or to participate in a loan modification program ("LMM"). Alternatively, even if this Court had any discretion to require participation on the LMM program, Debtor has not established that ordering such participation would be appropriate in this case: the lender objects that it has determined that Debtor is ineligible for (a second, voluntary) reduction of the amounts that Debtor is legally obligated to pay. So if this Court were to order participation in the LMM program, it appears that would only cause delay and added expense.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
8:30 AM
Debtor(s):
Thomas Virden Tolley Represented By Matthew D. Resnik
Movant(s):
Thomas Virden Tolley Represented By Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
Deny. Appearances are not required.
Key documents reviewed (in addition to motion papers): Opposition (dkt.22); Reply (dkt.24).
Debtor has not cited any authority that this Court has the power to compel lenders (if they timely object) to grant loan modifications or to participate in a loan modification program ("LMM"). Alternatively, even if this Court had any discretion to require participation on the LMM program, Debtor has not established that ordering such participation would be appropriate in this case: the lender objects that it has determined that Debtor was already reviewed, did not meet investor guidelines, and Debtor has not established a change in circumstances. So if this Court were to order participation in the LMM program, it appears that would only cause delay and added expense.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Movant(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wesley Reed Jr. Represented By
Leroy Bishop Austin
Movant(s):
Wesley Reed Jr. Represented By
Leroy Bishop Austin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 73
- NONE LISTED -
Debtor(s):
John Dennis London III Represented By
Glenn Ward Calsada
Joint Debtor(s):
Maria Guadalupe Gonzalez-London Represented By
Glenn Ward Calsada
Movant(s):
UNITED STATES OF AMERICA Represented By
Gavin L Greene
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Debtor(s):
June K Moore Pro Se
Movant(s):
United States Trustee (LA) Represented By Ron Maroko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Sustain the claim objection, and disallow LVNV Funding, LLC's claim no. 7 in full. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco Javier Rodriguez Represented By Barry E Borowitz
Joint Debtor(s):
Liset Rodriguez Represented By Barry E Borowitz
Movant(s):
Francisco Javier Rodriguez Represented By Barry E Borowitz
Liset Rodriguez Represented By
8:30 AM
Trustee(s):
Barry E Borowitz Barry E Borowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Continue to 3/26/20 at 8:30 a.m. to address the following issues. Appearances are not required on 2/27/20.
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter,
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unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlys Franklin Bays Represented By William G Cort
Movant(s):
Carlys Franklin Bays Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Continue to 3/26/20 at 8:30 a.m. to address the following issues. Appearances are not required on 2/27/20.
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter,
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unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlys Franklin Bays Represented By William G Cort
Movant(s):
Carlys Franklin Bays Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 20
The tentative ruling is to deny the motion for the reasons set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Reasons for denial:
Background
Debtor's motion (the "Stay Violation Motion") seeks an order setting aside a foreclosure sale of property at 10504 Victory Blvd., Los Angeles, California (the "Property") - or determining that the sale was void - because Debtor asserts that the sale was conducted in violation of the automatic stay of 11 U.S.C. 362(a)(1), (3) and (6). Dkt.20, pp.8:6-10 & 11:4-13. Debtor also seeks an award of attorney fees and costs against creditor Community West Bank, N.A. ("Bank") and the foreclosing trustee under the deed of trust, SBS Trust Deed Network ("Foreclosure Trustee") (collectively, "Creditors"), pursuant to 11 U.S.C. 105(a) and this Court's inherent civil contempt and sanctioning authority, as well as an order directing Creditors to take steps to unwind the foreclosure sale. Id. at pp.9:14-11:13.
The sequence of key events is as follows. On 11/8/19 Debtor filed his bankruptcy petition. Dkt.1. Also on 11/8/19, Debtor faxed a notice (the "Fax Notice") to Foreclosure Trustee referencing Debtor's bankruptcy case and stating, "Please stop the sale" of the Property (and two other properties).
Dkt.20, p.16, para.3, & Ex.15, at PDF p.82. On 11/11/19, according to Debtor's attorney's declaration, his office telephoned Foreclosure Trustee, providing further notice of the bankruptcy case. Dkt.20, p.16, para.3.
On 11/13/19, Foreclosure Trustee conducted a foreclosure sale of the
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Property. The Property was purchased by a third party purchaser, Balcor, LLC (the "Purchaser"). Dkt.30, Ex.J.
On 11/21/19 Debtor filed his bankruptcy Schedules A and D, which were the first papers filed in this bankruptcy case to reveal that Debtor asserted an interest in the Property. See dkt.13, at PDF p.7, 16. The problem for Debtor is that, as he admits, record title to the Property was held by Debtor's corporation ("Laundromat"), and the debt was owed by Laundromat, not Debtor individually.
Debtor asserts that he had an equitable interest in the Property because among other things he regularly paid Laundromat's business debts. It is also undisputed that Debtor was a guarantor of Laundromat's debt to Bank. The main question is whether those things are enough to make the automatic stay applicable.
In addition, if the automatic stay did apply (despite the tentative ruling, below, that it does not apply), then the question would be whether there are grounds to annul the stay. Bank argues that it and others have acted without notice of any applicability of the automatic stay, and would be prejudiced if the stay were applied.
Specifically, Bank points out that nothing on the bankruptcy docket reflected Debtor's alleged interest in the Property before the foreclosure sale, and after the foreclosure sale Bank reconveyed its deeds of trust on two other properties that had secured Debtor's guaranty of Laundromat's debt to Bank, all before Debtor filed and served his Stay Violation Motion. In addition, Bank asserts that Purchaser has obtained its own loan, from Fleet Capital, Inc. ("New Lender"), secured by a new deed of trust on the Property. Dkt.30, p.4:3-15.
Procedural issues
This Court notes two procedural issues. The tentative ruling is that the first is not dispositive, but the second is.
First, the Stay Violation Motion does not follow the usual procedure of requesting an order to show cause ("OSC") why the alleged violation of the automatic stay should not be subject to sanctions. See In re Dyer, 322 F.3d 1178 (9th Cir. 2003). By proceeding straight to a motion seeking sanctions and other relief, Debtor has bypassed the procedural protection of this Court's initial review and decision whether or not to issue an OSC. But Creditors have not objected on that basis, and this Court is not aware of any prejudice
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from the procedure used by Debtor, so the tentative ruling is that this procedural irregularity is implicitly waived, or is forfeited. See In re Hamer, 138 S.Ct. 13, 17 n.1 (2017) (distinguishing forfeiture and waiver).
Second, Debtor did not serve the Stay Violation Motion on Purchaser or New Lender. See dkt.20, at PDF pp.18-19. True, on 1/24/20 Debtor served a notice of the motion on Purchaser (see dkt.24, pp.3-4), so Purchaser had notice and easily could have obtained a copy of the Stay Violation Motion. But there is no evidence that New Lender has received any such notice.
The tentative ruling is that Purchaser has implicitly wiaved, or has forfeited, any opposition on grounds of lack of proper service, by not responding to the notice of the Stay Violation Motion. But as to New Lender the tentative ruling is that unwinding the foreclosure sale or otherwise prejudicing New Lender's interests in the Property would violate due process. Accordingly, this is one ground for denying the Stay Violation Motion (such denial would be without prejudice; but as set forth below the other problems with the motion may be insurmountable).
The automatic stay
The provisions of the automatic stay cited by Debtor provide, in relevant part:
... a [bankruptcy] petition ... operates as a stay, applicable to all entities, of -
... a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before [the petition date], or to recover a claim against the debtor that arose before the commencement of the [bankruptcy] case ...;
...
any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
...
(6) any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title ... [11 U.S.C. Section 362(a)(1), (3) & (6) (emphasis added)]
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No property interest
The tentative ruling is that Debtor has not established, by clear and convincing evidence, the existence of a resulting trust under California law. Nor has he establisheed any other cognizable legal or equitable interest in the Property.
Under 11 U.S.C. 541(a)(1), property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case" (with inapplicable exceptions). There is no dispute that legal title to the Property was in the name of the Laundromat, and the loan documents and deed of trust were in the Laundromat's name (dkt. 30, Ex. A and B). Whether Debtor nevertheless had an equitable interest in the Property is an issue governed by state law. See In re Sale Guar. Corp., 220 B.R. 660, 664 (9th Cir. BAP 1998).
Under California law, "a resulting trust arises from a transfer of property under circumstances showing that the transferee was not intended to take the beneficial interest." Id. (internal citation and quotation omitted). The party claiming a resulting trust in property has the burden of proof, and must establish their interest by "clear and convincing" evidence. In re Cecconi, 366
B.R. 83, 115 (Bankr. N.D. Cal. 2007) (citing Gomez v. Cecena, 15 Cal.3d 363, 366-67 (1940)).
Debtor argues that a "resulting trust" exists based on his assumption of the "benefits and burdens of ownership" of the property. See dkt. 20,
p.8:11-14. But, first, there is no evidence of "a transfer of property" from Debtor to Laundromat, which is an essential element to establish a "resulting" trust. Sale Guar. Corp., 220 B.R. 660, 664.
Second, even if that element were established (which it is not), Debtor's remaining evidence of any resulting trust is not "clear and convincing." Although Debtor alleges that it was the intent of both the corporation and Debtor that he would retain "all important incidents of ownership," there is no evidence of that except his payment from his individual bank acccounts of the mortgage and property taxes, and the tentative ruling is that this is not, by itself, clear and convincing evidence. Dkt.20, p.8:15-26.
This Court takes judicial notice that it is not uncommon for the owners of closely held corporations to have some mixing of individual and business transactions; but that common pattern does not mean that in all such cases
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the business' property is the debtor's. Consider what that would mean in this case: Would Debtor take the position that the Property was his, not the Laundromat's, if, for example, an environmental toxic waste plume were found to have emanated from the Property? This rhetorical question illustrates that Debtor's evidence of any equitable ownership of the Property is far from "clear and convincing."
This Court recognizes that Debtor conceivably could assert alternative grounds for some sort of equitable interest in the Property. But Debtor has not done so, and it is not immediately apparent to this Court how any attempt to do so would be any more successful. In other words, Debtor's evidence probably cannot satisfy the high bar that generally applies to establishing such equitable interests.
In sum, the tentative ruling is that Debtor has not provided sufficient evidence and authority to establish an equitable interest in the Property. So to the extent that the automatic stay depends on Debtor or the bankruptcy estate having a property interest, the Stay Violation Motion must be denied.
No violation of the automatic stay by acts against a non-debtor, or a non- debtor's property
With certain limited exceptions, such as the co-debtor stay in Chapter 13 cases, the automatic stay does not protect non-debtors or extend to property of non-debtors. See In re Levine, 583 B.R. 231, 236 (C.D. Cal.
2018); In re Chugach Forest Products, Inc., 23 F.3d 241, 246 (9th Cir. 1994). "A strict reading of Section 362(a)(6) indicates that it stays acts to recover a 'claim' against the debtor, and not a debt owed by the debtor." In re Torrez, 132 B.R. 924, 943 (Bankr. E.D. Cal. 1991); see also In re Advanced Ribbons and Office Products, Inc., 125 B.R. 259, 264 (9th Cir. BAP 1991) (concluding that a foreclosure sale on debtor's sole shareholder's stock pledged as security for a debt was not a violation of Section 362(a)(6) because the sale involved the collection of a claim against the property rather than collection of a claim against the debtor).
Debtor cites no authority for the proposition that foreclosing on non- debtor property to satisfy an obligation on which the non-debtor is the primary obligor violates the automatic stay. The authority cited above provides that acts to collect from a non-debtor or the non-debtor's property are not construed as acts against a debtor, even if that debtor is a guarantor of the non-debtor's debts. Therefore the tentative ruling is to deny the remaining
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aspects of the Stay Violation Motion.
Alternatively, retroactive annulment of the automatic stay would be appropriate under the circumstances
The tentative ruling is that even if there were a violation of the automatic stay (which there is not), it would be appropriate to annul the automatic stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
First, Debtor has not established that Creditors had notice prior to the foreclosure sale of the grounds on which Debtor asserts that the automatic stay applied to protect the Property. Second, Creditors' and other parties' rights would be unduly prejudiced by applying the stay.
Bank has released its liens on two other properties. Any attempt to reimpose those liens, or Bank's lien on the Property, would expose Bank to risks. Bank would be exposed to the risk of any alleged intervening liens or interests, such as those of New Lender. Bank would also be exposed to the alleged interests of any person who, like Debtor, alleges an unrecorded interest.
Purchaser has invested time and money in acquiring the Property.
Purchaser has also become indebted to New Lender.
New Lender has invested time and money in making its loan. It has also recorded a deed of trust against the Property.
Debtor has not established how to "unscramble the eggs" so as to protect and compensate all of these parties, let alone that it would be appropriate to unwind the foreclosure sale in the face of so much reliance on the lack of any notice of the automatic stay. Therefore the tentative ruling is that, even if the stay had applied (which it did not), it would be appropriate to grant retroactive relief by annulling the stay.
Conclusion
For the foregoing reasons the tentative ruling is that the Stay Violation Motion must be denied. In addition, the tentative ruling is that, because it does not appear that any amendment of the motion could cure the problems
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described above (except the service issues), the denial must be with prejudice.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Dane Robert Gladden Represented By William J Smyth
Movant(s):
Dane Robert Gladden Represented By William J Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20
Docket 64
Debtor(s):
Rodrigo Estrada Jr. Represented By Michael E Clark Barry E Borowitz
Joint Debtor(s):
Debra Ann Flores-Estrada Represented By Michael E Clark Barry E Borowitz
Movant(s):
Rodrigo Estrada Jr. Represented By Michael E Clark Barry E Borowitz
Debra Ann Flores-Estrada Represented By Michael E Clark Michael E Clark Barry E Borowitz Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20
Docket 96
Tentative Ruling for 2/27/20:
Appearances required. The tentative ruling is to deny the motion to approve the settlement, as amended (dkt.96, 103, 104), for the reasons stated in this Court's interim order (dkt.100). In addition, the tentative ruling is to issue, pursuant to 11 U.S.C. 105(a), an order to show cause why this case should not be converted to chapter 7 or dismissed, because:
at the hearing on 1/23/20 this Court was persuaded to continue this matter with a deadline of 2/13/20 for Debtor to file supplemental papers addressing the issues raised in this Court's interim order (dkt.100) but no supplemental papers have been filed;
Debtor has failed to abide by her duties as a chapter 13 debtor (11
U.S.C. 521) based on (a) her belated acknowledgment of her interest in the subject property and (b) her failure either (i) to attempt to obtain any recovery for her creditors based on that interest (let alone a fair recovery) or (ii) to offer a colorable explanation for failing to do so; and
Debtor has failed adequately to address the issues raised by this Court (see dkt.100).
The foregoing facts appear to constitute grounds for conversion or dismissal under 11 U.S.C. 1307(c), including but not limited to paragraph (1) thereof.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20:
Appearances required. This Court has reviewed the Amended Motion For Court Approval Of Proposed Marital Settlement Agreement (dkt. 103, filed and served on some, but not all, creditors on 1/9/20). The tentative ruling is to DENY the amended motion for the reasons set forth in this Court's order setting this hearing (dkt. 100).
Order: After the hearing this Court will prepare the order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Lisa Sandoval Represented By Raymond Perez
Movant(s):
JOSE MEJIA Represented By Jonathan T Nguyen Cynthia Grande
Trustee(s):
Kathy A Dockery (TR) Pro Se
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(n) and (w) to modify plan or suspend plan payments fr. 12/19/19
Docket 63
Tentative Ruling for 2/27/20:
Appearances required. There is no tentative ruling, but the trustee should be prepared to address whether debtors' supplemental reply (dkt. 82) adequately addresses the issues raised in the Trustee's response and request for hearing (dkt. 66).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/19:
Appearances required. There is no tentative ruling, but the trustee should be prepared to address whether debtors' reply (dkt. 73) adequately addresses the issues raised in the Trustee's response and request for hearing (dkt. 66).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Diane Turner Gates Represented By Brad Weil
Joint Debtor(s):
Steven Robert Gates Represented By Brad Weil
Movant(s):
Diane Turner Gates Represented By Brad Weil
Steven Robert Gates Represented By Brad Weil
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20
Docket 64
Tentative Ruling for 2/27/20:
Grant the motion and authorize and direct the Trustee to disburse the net funds that are being held (approximately $23,045.21) to Ms. Campos as set forth below. Appearances are not required.
Proposed order: Ms. Campos is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's response (dkt. 67), Opposition of Yunuen Campos (dkt. 68), Debtor's supplemental response (dkt. 69)
Reasons: At a hearing on 9/19/19, this Court was persuaded not to dismiss Debtor's case and to give Debtor additional time to attempt to address the issues in this case on the condition that Debtor keep making his plan payments and, in the event of dismissal, those funds would be turned over to Ms. Campos, as a contemporaneous exchange for her agreement not to go after his accounts receivable while the parties attempted to settle their disputes (see dkt. 64, Ex. A, p. 10:18-24, 13:18-23). Debtor's papers argue that he has not engaged in bad faith and might have defenses to Ms.
Campos' various accusations against him, but that is irrelevant. Debtor agreed that upon any dismissal of this case the net funds held by the Trustee would be turned "over to Ms. Campos's counsel in exchange for an agreement not to go after the accounts receivable while we're trying to settle [their disputes]." Dkt.64, Ex.A, p.10:18-24. Ms. Campos and this Court relied on that agreement. See dkt.64, Exa.A, p.13:18-23, and see dkt.58, ordering
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para.3. Debtor has not established any grounds to reneg on his agreement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20:
Grant the motion and authorize the Trustee to disburse the $23,045.21 in funds to debtor. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Jeffrey S Shinbrot
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd Order to Show Cause re: Why This Case Should Not be Dismissed With a 180-Day Bar Against Being a Debtor in Bankruptcy
fr. 01/23/20
Docket 16
Debtor(s):
Sukhjodh Johal Represented By
Michael D Kwasigroch
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Trustee's Motion for Order Disgorging Fees Paid to Michael Kwasigroch
fr. 01/23/20
Docket 18
Debtor(s):
Sukhjodh Johal Represented By
Michael D Kwasigroch
Movant(s):
Kathy A Dockery (TR) Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
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Docket 0
- NONE LISTED -
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Docket 1
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The following tentative rulings are subject to any opposition and other persuasive argument at the hearing:
Background: church solvency, and governance disputes
Debtor appears to be very solvent, but alleges cash flow problems.
Those problems appear to be intertwined with governance disputes.
Solvency
Debtor's bankruptcy petition and list of 20 largest general unsecured creditors ("GUCs") (dkt. 1, 11) list very few GUCs, with total claims of under
$896,000. Debtor's "first day" motions allege that it owns 1218 South Fairfax Ave., Los Angeles, California (the "Property"), which Debtor estimates is worth between $17 and $18 million and is only encumbered by a first deed of trust lien of approximately $630,000 in favor of Commonwealth Business Bank (the "Bank").
Debtor alleges that its cash flow problems arise from a prepetition dispute with LA Open Door Presbyterian Church ("LA Open Door"), which was a lessee from Debtor under a lease that Debtor alleges was terminated prepetition after months of non-payment. LA Open Door is also subject to a final judgment of approximately $3 million in favor of Evangelical Christian Credit Union ("Evangelical CU"). Debtor reports that Evangelical CU obtained appointment of a receiver over LA Open Door, Thomas Seaman (the "Receiver"), but that LA Open Door has been uncooperative with the Receiver. All of this allegedly has exacerbated Debtor's cash flow problems.
Governance issues
Debtor has no board of directors, but asserts that it is governed by
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certain elders known as the "Session," which Debtor alleges is analogous to a corporate board of directors. See dkt.16 (the "Plan Procedures Motion"), p.4:1-3. Debtor acknowledges that there is a governance dispute among, on the one side, Debtor's Session and religious leaders associated with the Session and, on the other side LA Open Door, The Western Presbytery of the Hapdong in USA ("Hapdong"), and their associated religious leaders.
Debtor proposes to sell the Property, pay all creditors in full, and have the surplus available "for distribution to the litigating parties who claim to be the true spokespersons of the Debtor, with such funds to be held by a professional third party fiduciary until such litigation has either concluded or the parties resolve their differences." Dkt.16, p.11:1-6. That approach (selling property now, and arguing about the proceeds later) is a common and effective tool in bankruptcy cases. But the twist in this case is that it is unclear who has legal title to the Property and who has authority to authorize the sale of the Property.
In terms of legal title, this Court takes judicial notice that in bankruptcy cases filed by churches of other religions/denominations there have been disputes about whether "church" property is owned by the worshipers, the leadership of a local church, a single church official in the capacity of a "corporation sole," or some other form. Debtor's papers do not address that issue.
In terms of who has authority to authorize a sale of the Property, Debtor alleges that it had discussions with LA Open Door about a possible merger but called off those discussions in August of 2019. Debtor acknowledges, however, that "LA [Open Door] asserted that the Debtor and LA [Open Door] were already 'one' church under LA [Open Door's] leadership." Dkt.15, p.2:21-24 (emphasis added). In addition, Debtor acknowledges that, although LA Open Door allegedly was supposed to occupy only 60% of the Property under the terms of the lease, instead it had been occupying 100%, and has attempted to become the "de facto owner" of the Property. Dkt.16, p.2, n.1 (emphasis added).
In other words, at least in the past, it was hotly disputed who properly controls both Debtor and the Property. The leadership of LA Open Door apparently claimed to control both, and perhaps Hapdong asserted some control, although its role is not described in Debtor's papers.
Nor is it clear what role, if any, is played by the worshipers at the various church organizations. Do Debtor's worshipers have the power to
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control the disposition of the Property and/or to replace Debtor's Session and/or its individual leaders? Would Debtor's worshipers oppose a sale of the Property, and prefer to lease it or some other approach, based on capital gains taxes or other considerations? Do LA Open Door's and Hapdong's worshipers have any interests at stake? Is it even clear whether a given worshiper belongs to Debtor's congregation or to LA Open Door's and/or Hapdong's?
Perhaps these governance issues have been partially or fully resolved in the nonbankruptcy courts. Debtor reports that on 11/6/19 it commenced an action against LA Open Door entitled Korean Western Presbyterian Church of Los Angeles v. Jong Suk Choi et al. (LA Superior Ct., Case No.
19STCV40062) (the "LA Open Door Litigation"). Debtor reports that the Superior Court has enjoined LA Open Door and others from interfering with Debtor's use of the Property as set forth in its lease with LA Open Door. See dkt.16, p.10:7-14. But, again, Debtor does not describe the situation with Hapdong, and it is unclear whether Debtor's worshipers have any say in these matters.
Based on (i) all of the above-described property ownership and governance issues and (ii) possible assertions that LA Open Door and Debtor have merged or otherwise might be liable for one another's debts, all parties are directed to address whether notice of all of the matters on today's calendar must be provided to various types of persons who have not already been served. In the broadest scenario, perhaps notice should be provided to all worshipers and all creditors of (i) Debtor and also (ii) LA Open Door and Hapdong. The parties are directed to address the scope of notice that may be necessary or appropriate.
Possible difficulties identifying creditors or worshipers, and possible limits on the need for such notice
This Court recognizes that providing notice to a wide range of parties in interest might be difficult, and also might be legally unnecessary. For example, the Receiver for LA Open Door might have supplanted the leaders of that entity, and even its worshipers, on a wide range of governance issues.
But the Receiver's control appears to be limited to collection of revenues, obtaining financial information, and related matters, not sale or other disposition of the Property. In addition, if the Receiver has any potential role in these proceedings, it is unclear if the Receiver would need to apply to the Superior Court for directions, and how principles of comity and respect for
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the Superior Court's jurisdiction should be applied in this situation.
As for identifying creditors and worshipers, the Receiver's Report regarding LA Open Door (dkt.16, Ex.4, p.2:7-10, at PDF p.33) alleges that the Receiver provided notice to various banks and an "internet giving portal" for LA Open Door. The Receiver reports that in response to requests to turn over funds he received only a single check, from Hanin Federal Credit Union ("Hanin CU") (dkt.16, Ex.4, p.2:10-13, at PDF p.33), and that he received little to no cooperation from the leadership of LA Open Door or its worshipers.
According to the Receiver, at the end of various LA Open Door services that he attended its worshipers gave hardly anything to that entity, despite having given generously in the past.
In sum, based on the Receiver's report and Debtor's papers, it may be difficult to identify names and addresses for worshipers or creditors. But the parties are directed to address whether it is necessary or appropriate to direct Debtor to attempt to do so, including but not limited to (i) attempting to communicate to worshipers through the "internet giving portals" for Debtor, LA Open Door, and/or Hapdong, and (ii) attempting to identify creditors through discovery or other mechanisms.
Conclusion as to governance issues
Debtor has served the motions that are the subject of this hearing in accordance with this Court's order shortening time ("OST," dkt. 19), except for one creditor served within a couple of hours after the time directed in the OST, and the tentative ruling to that this is sufficient. See dkt.26, 28.
Nevertheless, before this Court can authorize the sale of the Property, and retention of professionals by Debtor in furtherance of any such sale, it is important to consider whether Debtor's present leadership is authorized to seek those things, and whether other persons might be entitled to oppose or support those things, and therefore whether they should receive notice.
Because of these concerns, all of the tentative rulings set forth below are subject to the possibility that, before this Court authorizes anything, more notice must be given.
Debtor's application to employ bankruptcy counsel (dkt. 13); statement of disinterestedness (dkt. 14)
Debtor seeks to employ SulmeyerKupetz, a Professional Corporation ("Attorneys") as its general bankruptcy counsel. The tentative ruling is to grant the application and authorize Attorneys' employment, subject to the
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caveats stated above, including any arguments and evidence presented at the hearing, and the possibility of not adopting this tentative ruling at this time but instead continuing this hearing to provide more notice.
Debtor's application to employ chief restructuring officer (dkt. 15)
Debtor seeks to employ Broadway Advisors, LLC ("Broadway"), and its principal Alfred M. Masse, as its financial advisor and Chief Restructuring Officer ("CRO"). Debtor seeks to provide Broadway with "sole decision- making authority with respect to the sale of the Property." Dkt.16, p.10:3-4.
The tentative ruling is that Broadway cannot be its own supervisor, and that provisions in its proposed employment agreement that appear to be to the contrary will be disapproved. For example, the proposed agreement with Broadway requires that it be indemnified as both a director and an officer.
See dkt.15, Ex.1, p.3, para. 9 (at PDF p.19)). Debtor and Broadway should be prepared to provide more information on the decision-making and oversight being proposed.
Subject to the caveats above (again, considering any arguments and evidence presented at the hearing, and possibly providing more notice before making any final decision), the tentative ruling is to authorize Broadway to act as CRO, subject to the posted Procedures of Judge Bason regarding terms of employment (e.g., notwithstanding any arbitration provision, this Court will retain jurisdiction in the first instance over any employment/compensation issues).
The tentative ruling is that the authorization for Broadway to act as CRO should include sole decision-making authority with respect to the sale of the Property, except that any proposed sale must be subject to notice and a hearing, with an opportunity for Debtor's leadership and any other parties in interest to object.
Debtor's application to employ real estate broker (dkt. 25)
Debtor proposes to employ Jones Lang Lasalle ("Broker") as its real estate broker to sell the Property. Debtor states that it has consented to Broker representing potential purchasers (dkt. 25, p. 2: 14-15).
Subject to the caveats above (again, considering any arguments and evidence presented at the hearing, and possibly providing more notice before making any final decision), the tentative ruling is to grant the motion, with the following additional caveat. Notwithstanding any provision in the employment
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application or proposed agreement to the contrary, the tentative ruling is that Judge Bason's standard terms apply (unless struck through) as follows:
employment is per 11 U.S.C. § 327 not § 328; (b) payment only per 11 U.S.C. § 330(a) – no lien or superpriority claim is allowed (except as explicitly allowed – e.g., realtor commissions on court- approved sales); (c) maximum 2 hours per day of non-working time (e.g., travel, or waiting for matter to be called) absent an adequate explanation; (d) no buyers’ premium for auctioneers; (e) no dual agency; (f) all matters relating to the professional’s engagement, compensation and costs shall be resolved in this court, notwithstanding any provisions for arbitration, choice of venue, or the like, and (g) any indemnification, limitation of damages or the like is ineffective. See generally In re Circle K Corp., 279 F.3d 669 (9th Cir. 2002) and 11 U.S.C. § 327(a) (professionals may not "hold or represent an interest adverse to the estate").
Plan Procedures Motion (dkt. 16)
Before these hearings commence, Debtor hopes to file certain plan- related documents. As of the preparation of this tentative ruling, those documents have not been filed.
Debtor requests that it be excused from using the local forms of Plan and Disclosure Statement, and instead that it be authorized to file and serve a combined disclosure statement and plan (collectively, the "Plan"). Debtor requests authority to serve a two-page "Executive Summary" in Korean and English in lieu of serving a full copy of the Plan (but with the Plan available upon request). Debtor also requests that this Court set a combined hearing on (i) final approval of the disclosures in the Plan and (ii) confirmation of the Plan. In addition, Debtor seeks such a hearing on approximately 30 days' notice.
In sum, Debtor and requests (a) streamlined procedures and (b) expedited procedures. The tentative ruling is that the former is justified, but on the present record the latter has not been sufficiently justified.
Streamlined procedures
The tentative ruling is to excuse Debtor from using the local forms, authorize Debtor to file a combined document (the Plan), set a combined hearing on final approval of the disclosures in the Plan and confirmation of the Plan, and authorize service of the Executive Summary in lieu of the Plan
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but with a copy of the Plan readily available. On this last issue, the tentative ruling is that all parties in interest will actually receive greater disclosure when, instead of stacks of papers filled with dense legal language, they receive a short summary in "plain English" - or "plain Korean" - with easily an exercised option to review the full Plan either online or via email or U.S. mail, at the recipient's option. See 11 U.S.C. 105(d)(2)(B)(vi) (authorizing combined hearing on Plan and disclosures); 1125(b) & (c) (authorizing service of "court-approved summary" in lieu of full Plan, and disclosures "differing in amount, detail, or kind of information, as between classes"); and Rule 3017(d)
(1) (Fed. R. Bankr. P.) (reiterating option for "court-approved summary," provided that documents are made available at plan proponent's expense).
Request for a hearing on 30 days' notice
The tentative ruling is that Debtor has not provided sufficient justification for a hearing on 30 days' notice. First, the same caveats apply as with other motions: this tentative ruling is subject to any opposition at this hearing and the possible need for more notice.
Second, until the proposed documents are filed it is premature to determine whether they can be served in their proposed form, or if they need amendments (or replacements with entirely new forms).
Third, it may be problematic to confirm any Plan until the bar date for filing proofs of claim has passed, including the special bar date for governmental entities. The parties are directed to address what bar date this Court should set.
Fourth, although Debtor explains why there is some urgency - its professionals need assurance that their employment is authorized before they can be expected to devote the substantial time and effort needed to market and sell the Property - it is unclear why the Property must be sold so quickly. Presumably that has to do with cash flow issues, but those issues have not been fully explained.
For example, why is it not possible for Debtor to use funds provided by its worshipers (either regular collections or a special collection) to tide Debtor over until the Property can be sold, or some other solution can be explored, on a less expedited basis? Alternatively, why is it not possible to obtain loans (11 U.S.C. 364) or perhaps other funding mechanisms to tide Debtor over?
Subject to all of the foregoing, the tentative ruling is to grant the Plan Procedures Motion, with the date of the combined hearing on disclosures and confirmation to be determined. Deadlines for service of the voting package,
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filing and service of any opposition, and any other relevant matters also will need to be determined.
Proposed orders: If this Court is persuaded at the hearing not to require additional notice, and instead to adopt the foregoing tentative rulings in whole or in part, then Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date. The tentative ruling is that this Court will issue a "Memorialization Of Tentative Rulings" or similar document, and all lodged order should incorporate that document by reference, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/14/20.
Bar date: see part "(5)(b)" above (DO NOT SERVE notice yet -
court will prepare an order after the status conference).
Procedures order: dkt.5. This order directed Debtor to serve a copy of the order on all parties in interest. The docket does not reflect any proof of service. Why not?
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters. Status report on this Court's local form due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Korean Western Presbyterian Church Represented By
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Victor A Sahn Steven Werth
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Docket 13
Please see the tentative ruling for the status conference (Calendar No. 1, 2/28/20).
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
10:00 AM
Docket 15
Please see the tentative ruling for the status conference (Calendar No. 1, 2/28/20).
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
10:00 AM
Docket 16
Please see the tentative ruling for the status conference (Calendar No. 1, 2/28/20).
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
10:00 AM
Docket 25
Please see the tentative ruling for the status conference (Calendar No. 1, 2/28/20).
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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MORTGAGE-BACKED SECURITIES, 2018-G
vs DEBTOR
Docket 30
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred Ken Wing Li Represented By Ryan A. Stubbe
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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ABS LOAN TRUST VI
vs DEBTOR
Docket 38
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosa Candida Perez Represented By Thomas B Ure
Movant(s):
ABS Loan Trust VI Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 50
Debtor(s):
Nivea Ayanna Brown Represented By Marcus G Tiggs
Movant(s):
U.S. Bank National Association, as Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 53
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 55).
In addition, this Court notes that Movant did not serve Debtor's non- debtor husband, Luis A. Delgado, who is listed on the deed of trust as a joint tenant with respect to the subject property. That is a prerequisite for any "in rem" relief. See LBR 4001-1(c)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
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To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is insufficient evidence on the record to convince the Court that the Debtor is involved in a scheme to delay, hinder, or defraud Movant as is required under Section 362(d)(4) or the other authorities cited above.
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sonia Noemi Delgado Represented By Axel H Richter
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Movant(s):
Carrington Mortgage Services, LLC Represented By
S Renee Sawyer Blume Christopher Giacinto Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
M & T BANK
vs DEBTOR
Docket 54
- NONE LISTED -
Debtor(s):
Netner Tawana Kelly Represented By Sundee M Teeple
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
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THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria Cristina Reynot Represented By Louis J Esbin
Movant(s):
THE BANK OF NEW YORK Represented By Julian T Cotton Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 33
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose A. Vallejos Represented By Donald E Iwuchuku
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SCHOOLSFIRST FEDERAL CREDIT UNION
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:18-bk-24104-NB) was dismissed (on 7/24/19) within one year before this case was filed (on 9/24/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no.
2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sharon Whitaker Represented By
Kourosh M Pourmorady
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jay Balingcos Represented By Julie J Villalobos
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 28
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Dane Robert Gladden Represented By William J Smyth
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] VILLAGE CAPITAL & INVESTMENT, LLC
vs
DEBTOR
Docket 19
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
10:00 AM
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C.
10:00 AM
109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bianca C Amezcua Pro Se
Movant(s):
Village Capital & Investment, LLC Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST NATIONAL ASSOC
vs DEBTOR
Docket 16
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, grant the motion under 11 U.S.C.
362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-24087-NB) was dismissed (on 1/9/20) within one year before this case was filed (on 1/13/20), (b) that dismissal was not under 11 U.S.C.
707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
10:00 AM
present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Paul Albert Satterlee Pro Se
Movant(s):
Wilmington Trust National Represented By Cassandra J Richey
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 63
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Shakirim Dequesha Brown Represented By David H Chung
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOGIX FEDERAL CREDIT UNION
vs DEBTOR
Docket 35
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Edwin Rolando Samayoa Represented By Steven A Alpert
Movant(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DAIMLER TRUST
vs DEBTOR
Docket 22
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Phedria Forte Represented By
Matthew D. Resnik
Movant(s):
Daimler Trust Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CREDIT UNION OF SOUTHERN CALIFORNIA
vs DEBTOR
Docket 36
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Martha Patricia Ochoa Represented By Matthew D. Resnik
Movant(s):
Credit Union of Southern California Represented By
Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 24
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Harold Federick Link Represented By Bert Briones
Joint Debtor(s):
Sarah Angelica Link Represented By Bert Briones
Movant(s):
U.S. Bank National Association Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 10
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Aram Hayzavakyan Represented By
Vilen Khachatryan
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR
Docket 7
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Salvador Franco Ibarra Represented By Oscar R Swinton
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
THE SOLEMINT HEIGHTS PARTNERSHIP
vs DEBTOR
Docket 4
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
The movant obtained a prepetition eviction judgment and writ of possession. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.").
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joanna J Ochoa Garcia Pro Se
Movant(s):
The Solemint Heights Partnership, A Represented By
Joseph Cruz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HOME EXPO FINANCIAL INC.
vs DEBTOR
Docket 16
Grant in part, deny in part, as set forth below, and overrule Debtor's opposition (dkt.16). But this tentative ruling is subject to any additional opposition at or before the hearing, because Movant incorrectly listed the date of any opposition as 3/3/20, the date of the hearing. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Incorrect opposition deadline
Movant Home Expo Financial Inc. states in its motion that written opposition to the motion must be filed and served by the hearing date (3/3/20). But the posted Procedures of Judge Bason permit these types of motions to be set on 14 days' notice with opposition papers due five calendar days before the hearing. Movant is cautioned not to misstate this Court's procedures.
The automatic stay does not apply
Movant Home Expo Financial Inc. purchased the property at a foreclosure sale conducted on 8/29/19 and recorded a trustee's deed upon sale on 12/9/19, both of which occurred prepetition. Therefore, any interest Debtor had in the property was terminated prepetition.
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Debtor's opposition (dkt.25) asserts that Movant's predecessor in
interest (the foreclosing creditor) refused or failed to modify its loan to Debtor, and did not fully comply with foreclosure requirements. But Debtor has not cited any authority that would establish (a) any duty to modify that loan, or how that would render void the foreclosure sale and transfer of title to Movant, or (b) an exception to the usual rule that the proper time to raise allegations of defects in the foreclosure sale procedure is prior to the foreclosure sale, not afterwards. Accordingly, the tentative ruling is to overrule Debtor's opposition.
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases under In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is insufficient evidence on the record to convince this Court that Debtor is involved in a scheme to delay, hinder, or defraud the Movant that is equivalent to a scheme involving multiple bankruptcy cases or other acts analogous to 11 U.S.C. 362(d)(4), as is required under the authorities cited above.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
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any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elkin Ochoa Siegert Pro Se
Movant(s):
Home Expo Financial Inc. Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 11
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Vivian Luz Alderete Represented By Matthew D. Resnik
Movant(s):
Vivian Luz Alderete Represented By Matthew D. Resnik Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 6
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Franco Represented By Jaime A Cuevas Jr.
Movant(s):
Sergio Franco Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 15
Grant in part, and continue in part to 4/7/20 at 10:00 a.m., subject to the following conditions. Appearances are not required.
The tentative ruling is (1) temporarily to continue the automatic stay as to the 3775 Ruthelen Street property, through the continued hearing on 4/7/20 at 10:00 a.m., to permit the parties time to obtain an appraisal of the property (see dkt. 35, pp.2-3, and dkt. 36), and assess Debtor's progress in this case, and meanwhile (2) to grant the motion as to all remaining property of the Debtor's bankruptcy estate, such that the automatic stay applies to all such property.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to
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preventing a "race to collect" that could unfairly advantage some
creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited rulings. This Court's tentative ruling is that any finding of "good faith" is (a) solely for purposes of this motion and
(b) as to the 3775 Ruthelen Street property, solely on the limited basis set forth at the start of this tentative ruling. In other words, any good faith finding by this Court is not intended to have any binding effect with respect to the existence or lack of existence of good faith beyond the foregoing very limited rulings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
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DEUTSCHE BANK TRUST COMPANY
vs DEBTOR
Docket 39
Tentative Ruling for 3/3/20:
Appearances required. This Court was persuaded to continue the matter to this date at the request of the parties to allow time for Debtor to pursue refinance efforts. This Court is aware of Debtor's motion to continue this hearing (dkt.46), but that request will be addressed at the hearing.
There is no tentative ruling, but the parties should be prepared to address (a) the status of any refinance efforts, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janie B. Tatum Represented By Michael F Chekian
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Sean C Ferry Keith Labell Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHALET PROPERTIES III LLC
vs DEBTOR
Docket 40
Debtor(s):
Purisima Tan Ramos Represented By Scott Kosner
Movant(s):
Chalet Properties III LLC Represented By
Kristin A Zilberstein
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST, COMPANY
vs DEBTOR
Docket 93
Tentative Ruling for 3/3/20 (same as for 1/28/20):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 95).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Movant(s):
Deutsche Bank National Trust, Represented By Merdaud Jafarnia Nancy L Lee
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING, INC.
vs DEBTOR
Docket 69
Tentative Ruling for 3/3/20 (same as for 1/28/20 and 12/17/19): Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 72).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alexander Dela Cruz Del Rosario Represented By
Sevan Gorginian
Joint Debtor(s):
Marie Chita-Linda Vergara Del Represented By Sevan Gorginian
Movant(s):
Select Portfolio Servicing, Inc. as Represented By
10:00 AM
Trustee(s):
Josephine E Salmon
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 41
Tentative Ruling for 3/3/20:
Appearances required. Did Debtor make the $2,000 payment due 1/15/20, and any other payments? The parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Appearances required. This Court was persuaded to continue this matter to allow time for Debtor to make a $2,000 payment to Movant by January 15, 2020 and for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether Debtor timely made the payment described above, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Tiresa Dunelle Ulufale Represented By Elena Steers
Movant(s):
The Bank of New York Mellon, et al Represented By
Alexander G Meissner Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 37
Debtor(s):
Jose Maria Alcaraz Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Maria Refugio Alcaraz Represented By Jaime A Cuevas Jr.
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-F
vs DEBTOR
Docket 13
Debtor(s):
Carol Ann Harris Represented By
Edmond Richard McGuire
Movant(s):
Ajax Mortgage Loan Trust 2018-F Represented By
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18,10/9/18, 11/27/18, 01/08/19, 2/5/19, 03/05/19, 04/30/19, 06/04/19; 07/30/19, 9/24/19, 11/12/19, 12/17/19, 02/18/20
Docket 1
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
Plaintiffs' motion to strike answer and enter default (adv. dkt. 23) (calendar no.2, 3/3/20 at 11:00 a.m.)
Continue to the same date as the continued status conference, to assure entry and finality of this Court's order approving the parties' settlement, and full performance of the terms of the parties' settlement, at which point this motion will be moot.
Status Conference
Continued to 6/16/20 at 11:00 a.m., with the understanding that it will come off calendar once an order approving the settlement is entered in the main case, the parties' settlement has been fully performed, and Plaintiffs file a separate dismissal motion/application in this adversary proceeding as required by the posted Procedures of Judge Bason.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
11:00 AM
Tentative Ruling for 2/18/20:
Continue to 3/3/20 at 11:00 a.m. to be concurrent with the motion (main case dkt.67) to approve the settlement of this matter. Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 12/17/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Plaintiffs' motion to strike answer and enter default (adv. dkt. 23) The tentative ruling is that, because no Answer was ever filed,
Plaintiffs' request to strike the answer is moot. As for Plaintiffs' request for entry of a default judgment, the parties are directed to appear and address whether this Court should enter a default judgment or if instead the attempted settlement will be implemented.
Status Conference
The tentative ruling is to set a continued status conference for 1/28/20 at 11:00 a.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
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Tentative Ruling for 11/12/19:
Continue to 12/17/19 at 11:00 a.m., to be concurrent with another calendared matter (see adv. dkt. 23-25). Appearances are not required on 11/12/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). The parties should be prepared to discuss the following issues:
No Status Report
Again, the parties have not filed a Joint Status Report. Why not?
Efforts to finalize settlement
The 4/18/19 status report (adv.dkt.19) reports that this matter has settled. But the dockets in this adversary proceeding and in the associated bankruptcy case still do not reflect any steps to finalize the settlement (e.g., a motion in this adversary proceeding to approve a stipulated judgment, and/or a status report regarding the status of settlement payments and a suggested date to continue this matter, and/or if necessary a motion in the bankrupcy case to approve a settlement per Rule 9019, Fed. R. Bankr. P.). Why not?
This adversary proceeding has been pending since 6/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Tentative Ruling for 7/30/19:
Continue to 9/19/19 at 11:00 a.m., with a brief status report due 9/5/19 addressing whether the required settlement payments have been made, and any other issues regarding the parties' settlement (as reported at the status conference on 6/4/19). Appearances are not required on 7/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/4/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
The parties are directed to address why the docket does not reflect any steps to finalize their reported settlement (e.g., a motion in this adversary proceeding to approve a stipulated judgment, and/or if necessary a motion in the bankrupcy case to approve a settlement per Rule 9019, Fed. R. Bankr.
P.). This adversary proceeding has been pending since 6/22/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/19:
Continue this status conference to 6/4/19 at 11:00 a.m. so that the parties can document their settlement and obtain any approval of Court that may be necessary or appropriate. See Status Report (adv. dkt. 19). Appearances
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are not required on 4/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/5/19:
Appearances required.
The parties are directed to address (1) why no status report was filed as required by the adopted 2/5/19 tentative ruling, and (2) whether the parties have scheduled and/or attended mediation.
The tentative ruling is to continue this status conference to 4/9/19 at 11:00 a.m, with a brief status report due by 3/26/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/5/19:
Continue to 3/5/19 at 11:00 a.m, with a brief status report due by 2/26/19. Although the latest Status Report (adv. dkt. 16) does not address whether the mandatory mediation ordered by this Court has occurred, it appears that more time is needed for mediation. Caution: If the parties do not schedule and attend mediation before the next status conference, this Court may impose sanctions on the recalcitrant party(ies). Appearances are not required on 2/5/19.
11:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/8/19:
Continue to 2/5/19 at 11:00 a.m, with a brief status report due by 1/29/19. Appearances are not required on 1/8/19.
The parties have lodged, and this Court has approved, the Order Assigning Matter to Mediation Program and Appointing Mediator and Alternate Mediator (dkt. 11). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
At the hearing on 10/9/18, Defendants did not appear, and this Court was persuaded to take a flexible approach to whether Plaintiff would pursue default judgments, or mediation, or other avenues. The docket does not reflect any activity since that time. Should this status conference be continued? Should this adversary proceeding be dismissed for lack of prosecution?
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/9/18:
Appearances required, but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address why neither party has lodged a mediation order (via this Court's "LOU" program) as required by the adopted tentative ruling for 9/4/18. Cf. adv. dkt. 7 (belated request for mediation).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/4/18:
Appearances required. The court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority. The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly
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consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 9/10/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 6/22/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 11/27/18. Expert(s) - deadline for reports: 12/4/18
Expert(s) - discovery cutoff (if different from above): 12/11/18 Dispositive motions to be heard no later than: 12/18/18.
Joint Status Report: n/a
Continued status conference: 10/9/18 at 11:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
11:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Sharon Graner Represented By Stephen B Goldberg
Kieran Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 12/17/19, 02/18/20
Docket 23
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 1, 3/3/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 12, 2/18/20 at 11:00 a.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 3, 12/17/19 at 11:00 a.m.)
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
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Movant(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
11:00 AM
Docket 67
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Movant(s):
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By
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David M Goodrich
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to Abandon the Real Property Located at 10315 Kingerman Ave., South El Monte, California 91733 as it is of Inconsequential Value to the Estate
Docket 158
Deny. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Trusteee's opposition (dkt. 160) and request for hearing (dkt. 161); reply (dkt.162).
Reasons for denial: The tentative ruling is to deny the motion for abandonment because, although there is not a large amount of equity above the homestead exemption, there is some equity based on the only evidence before this Court, and Debtor's argument would enable any debtor in bankruptcy essentially to increase the homestead exemption by tens of thousands of dollars. It is very understandable that Debtors wish to retain their home, but the usual remedy is to enter into an arrangement with the Chapter 7 Trustee to buy out the bankruptcy estate's interest in the property.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
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Debtor(s):
Enrique Peralta Represented By Thomas B Ure
Joint Debtor(s):
Rosa Estrada Represented By
Thomas B Ure
Movant(s):
Enrique Peralta Represented By Thomas B Ure Thomas B Ure
Rosa Estrada Represented By
Thomas B Ure
Trustee(s):
Wesley H Avery (TR) Represented By Tamar Terzian
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Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
Sections 3439.04(B)(2) and 3439.05] 3. Common Law Fraudulent Conveyance 4.Civil Conspiracy
Docket 1
Continue as set forth below. Appearances are not required on 3/3/20.
Preliminary Issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint?
Status report
The summons (adv. dkt. 2) provides that a joint status report must be filed by the parties no later than 14 days prior to the status conference (2/18/20). As of the drafting of this tentative ruling, no status report has been filed.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Standard Issues
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant
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"believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/24/20.
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
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Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Sections 3439.04(B)(2) and 3439.05] 3. Common Law Fraudulent Conveyance 4.Civil Conspiracy
Docket 1
- NONE LISTED -
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim
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James A Dumas Jr
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Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20
Docket 1
Continue to 3/31/20 at 11:00 a.m. pending a decision from the District Court on whether to withdraw the refence. See Joint status report, adv. dkt. 13.
The parties are directed to file a joint status report by 3/17/20. Appearances are not required on 3/3/20.
If appearances are not required at the start of this tentative ruling but you wish to
dispute the tentative ruling, or further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
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Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
11:00 AM
Adv#: 2:19-01457 Carpenter et al v. Burga et al
11 U.S.C. § 523(a)(4)
fr. 1/7/20
Docket 1
Debtor(s):
Percy Burga Represented By
Clifford Bordeaux
Defendant(s):
Percy Burga Represented By
Clifford Bordeaux
Dana Lynn Geisler Represented By Clifford Bordeaux
Joint Debtor(s):
Dana Lynn Geisler Represented By Clifford Bordeaux
Plaintiff(s):
Jose M. Sanchez Represented By Chris K Jafari
Robert H. Carpenter Represented By Chris K Jafari
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01138 Rossil v. Ruan Partida et al
fr. 07/30/19, 9/24/19, 12/17/19, 02/18/20
Docket 1
Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the status of their settlement discussions (see adv. dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Continue to 3/3/20 at 11:00 a.m. in view of Defendant Salgado's counsel's notice of unavailability (adv. dkt.13) and unilateral status report (adv. dkt.12). Appearances are not required on 2/18/20. Based on the joint status report filed by the parties (adv. dkt. 14), it appears that this adversary proceeding may still settle. In case settlement discussion break down again, the parties are directed to meet and confer regarding possible dates for a trial and related deadlines. If the parties are able to agree on those things, they are directed to lodge a proposed order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Status of anticipated settlement
At the hearing on 9/24/19 this Court directed the parties to lodge a mediation order no later than 12/3/19 if the matter had not settled by then. It appears that at least some parties may have settled. The trustee and one of the defendants have filed a status report (adv. dkt. 10) stating that they anticipate settling this matter, either by cooperating in a sale of the the real property or by defendants purchasing the estate's claims against them. The parties are directed to address the status that anticipated settlement, and any other relevant matters.
General issues
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adversary docket number(s) 8, 9).
Deadlines: This adversary proceeding has been pending since 5/10/19.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 2/4/20
Continued status conference: 2/18/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
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chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
This Court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding. The tentative ruling is to order mediation - as requested by both parties - and continue this Status Conference as set forth below.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether
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the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 10/2/19 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/10/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/3/19.
Continued status conference: 12/17/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
11:00 AM
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/30/19:
Continue to 9/19/19 at 11:00 a.m. to provide the newly-appointed Chapter 7 Trustee an opportunity to meet and confer with the defendants (see adv. dkt. 8). Appearances are not required on 7/30/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Pro Se
11:00 AM
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19, 02/18/20
Docket 1
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
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fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 02/18/20
Docket 323
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of activity on the docket
This case was filed on 2/7/20 and as of the preparation of this tentative ruling there is very little activity on the docket. There are no "first day" motions such as the cash collateral motion, a budget motion, and the application to employ counsel that Debtor anticipated filing (see Status Report, dkt.18, p.3). Apparently Debtor has either been using cash without authority, or failing to use cash for ordinary and necessary expenses, both of which are bad.
What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Debtor's ex parte motion for joint administration (dkt. 19); oppositions by Le Elegant Bath, Inc. ("Elegant") (dkt. 23) and United States Trustee ("UST") (dkt.27)
Debtor filed an ex parte request for this Court to jointly administer his case with two related cases: A Touch of Brass ("Brass") (2:20-bk-11555-NB) and AC YU Chan Holdings LLC ("Holdings") (2:20-bk-11476-NB). Elegant opposes joint administration to the extent Debtor seeks relief greater than consolidating filings onto one docket and the UST similarly objects to any financial reporting that does not keep the estates separate, as well as any consolidated billing for professional fees and costs. The parties are directed to address whether this Court should set this matter for hearing or, alternatively, grant joint administration but without combining any financial reporting or professional billing.
Mediation
1:00 PM
The tentative ruling is to order Debtor, Elegant, and related debtors
Brass and Holdings to mediation before one of the volunteer mediators (not a Bankruptcy Judge) and set a deadline of 3/17/20 for Debtor to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
This case was filed on 2/10/20 and as of the preparation of this tentative ruling there is very little activity on the docket. There are no "first day" motions such as the cash collateral motion, a budget motion, and the application to employ counsel that Debtor anticipated filing (see Status Report, dkt.14, p.3). Apparently Debtor has either been using cash without authority, or failing to use cash for ordinary and necessary expenses, both of which are bad.
What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Mediation
The tentative ruling is to order debtor to attend mediation as set forth in more detail in the status conference for related debtor, Anthony Chan (Calendar no. 1, 3/3/20 at 1:00 p.m.).
Deadlines/dates. This case was filed on 2/10/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.7 (timely served, dkt. 9)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
AC YU CHAN HOLDING, LLC Represented By
Jeffrey I Golden
1:00 PM
Docket 6
Tentative Ruling for 3/3/20:
Appearances are not required on 3/3/20.
Current issues N/A
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: vacate the previously-set status conference on 3/10/20 at 1:00 p.m., and set a new status conference for 5/12/20 at 1:00 p.m., no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current issues
Status report
This Court's oral ruling at the 12/17/19 hearing directed Debtor to file a
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status report no later than 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Debtor is cautioned that failure to file status reports in future (when ordered) may result in adverse consequences.
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/10/20 at 1:00 p.m., brief status report due 2/25/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues N/A
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 38
- NONE LISTED -
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik Matthew D. Resnik
Roksana D. Moradi-Brovia Roksana D. Moradi-Brovia
1:00 PM
fr. 1/28/20, 2/4/20
Docket 53
Debtor(s):
Edmund Lincoln Anderson Represented By
Edmond Richard McGuire Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By
Edmond Richard McGuire Stella A Havkin
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
This Court has reviewed both of Debtor's status reports (dkt. 23, 26) and the other filed papers in this case. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/10/20 at 2:00 p.m., to be concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
1:00 PM
Saadian and Neifert Khorshid, a Professional Law Corporation
Docket 472
Please see tentative ruling for status conference (Calendar no. 7, 3/3/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20
Docket 323
Tentative Ruling for 3/3/20:
Appearances are not required on 3/3/20.
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol.").
The tentative ruling is to continue these matters to the date and time set forth below.
Trustee's motion to approve compromise of Young Adversary proceeding (dkt. 472); no opposition is on file
Grant the motion.
Proposed order: Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay- Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
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Continued status conferences to 3/31/20 at 11:00 a.m., to be concurrent with other matters. No written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19, 02/18/20
Docket 1
Tentative Ruling for 3/3/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 7 (3/3/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
1:00 PM
Docket 160
Please see the tentative ruling for the status conference (Calendar no. 9, 3/3/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
Docket 1
Tentative Ruling for 3/3/20:
Appearances are not required on 3/3/20.
Current issues
Debtor's motion to extend deadline to file disclosure statement and plan (dkt. 160); no opposition is on file
Grant the motion and extend the deadline to 8/3/20.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19) (dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19) (dkt. 16)
Plan/Disclosure Statement*: 8/3/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/2/20 at 1:00 p.m. Brief status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
to 11 U.S.C. Sec. 363 Setting Budget for Interim Use of Estate Property as Defined in 11 U.S.C. Sec. 1115
Docket 34
Please see the tentative ruling for the status conference (calendar no. 11, 3/3/20 at 1:00 p.m.)
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 6
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
Debtor's budget motion (dkt. 34) and supplemental declaration in support (dkt. 38)
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Employment application (dkt.21) and supplemental declarations in support (dkt. 39)
Grant, and approve the employment application on the terms set forth in this Court's revised tentative ruling for 2/18/20, reproduced below, Section (1)(a).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of the tentative rulings for 3/3/20 and 2/28/20, thereby incorporating them as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 4/7/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Employment application (dkt.21)
Debtor has filed Nat. Form B2030 (dkt. 23) and an amended SOFA (dkt. 24) disclosing that a retainer of $10,000 was paid by one James G. Lewis, who is described as one of Debtor's unsecured creditors. The tentative ruling is to set a deadline of 2/25/20 for Debtor and Mr. Lewis each to file and serve on the Office of the United States Trustee their declarations addressing the ethical concerns involved whenever a retainer is paid by a third party. See In re 9469 Beverly Crest, LLC (Case No. 2:19-bk-20000-NB, dkt.44). The tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see below).
As for other issues raised in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to cap costs for photocopying and other expenses per the applicable guidelines (see dkt.21, at PDF p.20), to authorize late payment charges only from when fees and costs are authorized and directed to be paid by this Court (see id., at PDF p.21), and to include the other standard provisions set forth in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Budget motion (as amended, dkt.34): This motion has been self- calendared for 3/3/20 at 1:00 p.m. There is no tentative ruling regarding that motion, but this Court notes (in anticipation of that hearing) that (i) Debtor lists a $750/mo. contribution from his son (dkt.34 at PDF p.9) but there is no contribution declaration on the docket; (ii) Debtor's MOR (dkt.35 at PDF p.7) states that going forward Debtor and his non-debtor wife will pay only their
1:00 PM
portion of the combined insurance premium for their vehicles and their children's vehicles, and that their children will be responsible for their own car loan payments and insurance, but there is no disclosure of how the insurance expense has been allocated; and (iii) Debtor's monthly income projected in the budget motion appears to be substantially lower than in prior years, based on a comparison with Debtor's Statement Of Financial Affairs ("SOFA") (dkt.24, line 4, at p.2), but there is no explanation why. (This Court also notes that the budget no longer includes $500/mo. of "support" payments "to mother-in-law and sister-in-law.")
Substantial equity in properties alleged to have been fraudulently transferred. As directed in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to direct Debtor to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfers of those properties, and direct all parties in interest who appear to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 21
Please see the tentative ruling for the status conference (calendar no. 11, 3/3/20 at 1:00 p.m.)
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Movant(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo Byron Z Moldo Byron Z Moldo
1:00 PM
Docket 247
- NONE LISTED -
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
Movant(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
1:00 PM
fr. 01/30/19, 02/13/19, 03/05/19, 3/26/19, 4/9/19, 4/22/19, 5/14/19, 6/11/19, 7/30/19, 9/24/19, 10/15/19,
11/12/19, 12/17/19, 2/4/20
Docket 1
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 1/25/19. A Plan (dkt. 208) was confirmed 12/17/19 (dkt. 232). A continued post-confirmation status conference is set for 3/31/20 at 1:00 p.m., to be concurrent with other matters. No written status report required. Note: If the other matters on 3/31/20 are continued, this Court likely will order a further continuance of this status conference, based on part on Debtor's request for a continuance of at least six months. See Status Report (dkt.258).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Koi Design LLC Represented By
1:00 PM
Susan K Seflin Jessica L Bagdanov
1:00 PM
11/12/19, 12/10/19, 1/28/20
Docket 7
Tentative Ruling for 3/3/20:
Appearances required.
Current Issues
Debtors' disclosure statement (dkt. 131) and chapter 11 plan (dkt.
132)
Insufficient cash for effective date payments
Debtors' Cash Flow Projections (dkt. 131, Ex. C) reflect that Debtors'
plan will be immediately infeasible and result in negative cash of ($7,138).
Extraneous pages
Debtor should delete extraneous pages. See Plan, dkt.130, Ex.A & Ex.A1, Continuation Sheets, at PDF pp.10 & 13, and Disclosure Statement, dkt.131, Ex.C2 and C3, at PDF pp.12&13; Ex.E, at PDF pp.18-22; Ex.F at PDF p.26; .
Mailing voting package?
Debtor is directed to address whether it is appropriate at this time to set a deadline (e.g., 3/9/20) for (A) filing a manually "blacklined" plan addressing the above issues and (B) lodging a proposed order authorizing the service of a voting package (in the form posted on Judge Bason's portion of the Court's website, www.cacb.uscourts.gov), with such proposed order authoring Debtor to serve the voting package (the Plan, Disclosure Statement, Ballot, and the approved order) setting a combined hearing soon (e.g., contemporaneous with the continued status conference date set forth below) on final approval of the Disclosure Statement and confirmation of the Plan. Among other things, this issue includes whether Debtor anticipates any objections to confirmation of the Plan and, if so, whether it makes sense to incur the time, expense, and possible confusion of copying and mailing the
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voting package now, or whether Debtor should attempt first to resolve anticipated objections.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: see above.
Continued status conference: 5/5/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current Issues
Now that the settlement with Mazakoda, Inc. has been approved (see dkt. 126, and see calendar no. 15, 1/28/20 at 1:00 p.m.), it appears appropriate to move forward with a proposed Plan and Disclosure Statement, as set forth below, and continue this status conference to a date after those documents are filed. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: file by 1/31/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
1:00 PM
Continued status conference: 3/3/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
1:00 PM
MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition (dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
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The tentative ruling is to overrule Debtor's evidentiary objections
(dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
Although valuation is relevant, the tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
Movant asserts that Debtor has shown bad faith, and that this is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and
1:00 PM
understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on 3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
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Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
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Docket 49
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
Debtor's Bankruptcy Schedules I and J provide very little information about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai
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allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
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The tentative ruling is to grant in part and deny in part the budget
motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare
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an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 1
Tentative Ruling for 3/3/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Debtor's Utility Motion (dkt. 10), no opposition is on file
Grant on a final basis, on the same terms as the interim order (dkt.38).
Debtor's Cash Collateral Motion (dkt. 11, 19), opposition of Le Elegant Bath, Inc. ("Elegant") (dkt. 47), Debtor's reply (dkt. 49)
This Court is mindful of the concerns raised by Elegant, including the findings of fact and conclusions of law by the State Court including on alter ego liability, and bearing on the related Debtors' alleged transfers of assets, lack of truthfulness, and delay. The tentative ruling is that those things are part of the totality of the circumstances that this Court may consider in various possible future contexts, but that for present purposes they are not sufficient to warrant denial of further interim relief regarding the use of cash collateral.
Grant on a further interim basis, on the same conditions set forth in the first interim order authorizing debtor's use of cash collateral (dkt. 37), with the requested 15% variances (dkt.49, p.2:4-8), through the conclusion of a continued hearing commencing on 6/2/20 at 1:00 p.m. The last two days of this period extend beyond Debtor's proposed cash collateral budget (dkt.11, Ex.2, at PDF pp.50-58), so the tentative ruling is to authorize expenditures for the week of 5/31/20 through 6/6/20 identical to the authorized expenditures covering the first day of the previous month (4/26/20 through 5/2/20). Id. at PDF pp.55-56.
Mediation
The tentative ruling is to order debtor to attend mediation as set forth in
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more detail in the status conference for related debtor, Anthony Chan (Calendar no. 1, 3/3/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on the above matters (2)-(4), via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/10/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.20 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Proofs of service re orders shortening time
This Court's orders shortening time (dkt. 13-15) directed Debtor to file a proof of service evidencing service of those orders no later than 2/13/20 at 5:00 p.m. As of the drafting of this tenative ruling, no such proofs of service have been filed.
Debtor is directed to address whether the three motions discussed below were timely served.
Debtor's Utility Motion (dkt. 10)
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Grant, subject to any opposition at the hearing and to resolution of the service issues described above.
Debtor's Cash Collateral Motion (dkt. 11, 19)
Grant on an interim basis, on the conditions set forth in calendar no.
27, 2/18/20 at 1:00 p.m., subject to any opposition at the hearing, and subject to resolution of the service issues described above. A continued hearing will be held contemporaneous with the continued status conference (see below).
Debtor's Wage Motion (dkt. 12)
Grant, subject to any opposition at the hearing, and subject to resolution of the service issues described above.
Continued status conference
As set forth in this Court's Order Setting (A) Principal Status Conference And (B) Procedures, a continued status conference, which will be the principal status conferece, will taken place on 3/3/20 at 1:00 p.m.
Proposed orders: Movant is directed to lodge proposed orders on the above matters (2)-(4), via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
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(1) Use of Cash Collateral on an Interim Basis; and (2) Setting Final Hearing on Use of Cash Collateral
fr. 02/18/20
Docket 11
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 17, 3/3/20 at 1:00 p.m.)
Revised Tentative Ruling for 2/18/20:
Grant the motion (docket no. 11) on an interim basis, subject to the following conditions. Appearances required.
Conditions
Debtor must provide proof of service of the motion papers and this Court's order shortening time ("OST," dkt.14) as directed in the OST, including expedited service on any persons asserting an interest in cash collateral, such that the papers would be received no later than 2/13/20 at noon.
Any tentative relief herein is subject to any opposition at the hearing.
Any authorization to use cash collateral is subject to the conditions set forth below, with a final hearing on 3/3/20 at 1:00 p.m., and a deadline of 2/19/20 for the movant to file and serve a notice of the final hearing.
Any party asserting an interest in cash collateral is granted a replacement lien to the same extent provided in part "(3)" of the "standard conditions" set forth below.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
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F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
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In the event that the motion or related papers seek authority to grant
postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2
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(e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
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fr. 02/18/20
Docket 10
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 17, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 29, 2/18/20 at 1:00 p.m.)
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
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fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20
Docket 1
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference, because Debtor has timely filed a motion to employ a real estate broker (see dkt. 97, 98).
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/7/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Order To Show Cause Re Service Of Bar Date Order (the "OSC," dkt. 63)
Discharge the OSC based on Debtor's fourth amended proof of service (dkt.89) and supporting declaration (dkt.90).
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Grant in part, as set forth in the tentative ruling for calendar no. 20 (2/18/20 at 1:00 p.m.), with a continued hearing contemporaneous with the continued status conference (see below).
(c) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
Grant on a further interim basis, on the same terms as this Court's
prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
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Continued status conference: 3/31/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference. Reasons: This Court's posted tentative ruling prior to the hearing scheduled for 12/10/19 (reproduced below) was not contested, and therefore it was adopted as this Court's ruling. The ruling was: "to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to [i] serve all required persons with notice of the continued hearing, and [ii] file a proof of service." (Emphasis added.) Beverly has done the latter (dkt.54) but not the former.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61) Grant on a final basis.
Deadlines/dates. This case was filed on 8/30/19.
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Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required. on 12/10/19, but Debtor and Beverly Partners, LLC ("Beverly") are directed, well ahead of the continued hearing date set forth below, to take whatever steps are necessary or appropriate to address the issues set forth below (e.g., correcting service and/or proofs of service, lodging proposed order(s), filing corrected MORs, etc.).
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Beverly's proof of service does not show service on the list of creditors included in Debtor's "list filed under Rule 1007(d)" (as required by Rule 4001(a)(1), Fed. R. Bankr. P.). See dkt. 1. The tentative ruling is to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to serve all required persons with notice of the continued hearing, and file a proof of service.
Cash collateral motion (dkt.19)
No proposed order has been lodged - at the hearing on 10/1/19 this
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Court directed counsel to lodge a proposed order granting the motion on an interim basis and attaching (and adopting) a copy of this Court's tentative ruling for that date (available at www.cacb.uscourts.gov). In addition, Debtor did not file and serve a notice of the final hearing by 10/3/19. In addition, any such service would have to be in compliance with the applicable rules for service, as stated in that adopted tentative ruling.
The current tentative ruling is (i) to direct counsel, again, to lodge a proposed order granting the motion on an interim basis through the conclusion of the final hearing, (ii) to set a final hearing for the same date and time as the continued status conference (see below), and (iii) to set a deadline of 12/11/19 for Debtor to file and serve notice of the final hearing in compliance with the applicable rules for service.
Proof of service of bar date order (dkt.28)
Debtor's counsel has had trouble with service of this order and/or proving that it was served as required. See dkt. 35,36,37. Even the latest, second amended proof of service (dkt.37) is inadequate in that it fails to state who actually served the order and when they did so. Implicitly, the person who signed the proof of service, Paulina Buitron, is the person who actually deposited the envelopes in the U.S. mail, and that was done sometime between 9/30/19, when the order was supposed to have been served, and 10/3/19, when the proof of service was filed, but the declaration does not actually say so. In addition, at the hearing on 10/1/19 this Court directed Debtor's counsel to double-check that all creditors had in fact been served and, if not, to apply for an order setting a supplemental bar date as to any creditors who have not been served.
The tentative ruling is to excuse what appears to be untimely service of the bar date order by a few days, and set a deadline of 12/11/19 (i) for Debtor's counsel to file a third amended proof of service of the bar date order, using the local form (mandatory for all motions) (see Local Form
F9013-3.1.PROOF.SERVICE), (ii) to lodge a proposed order excusing the untimely service of the bar date order, with a copy of this tentative ruling attached, and (iii) if necessary, apply for a supplemental bar date for any creditors who were not served with the bar date order, and lodge a proposed supplemental bar date order.
Debtor's Monthly Operating Reports ("MORs")
Debtor appears to be having trouble complying with his obligations as a debtor in possession, including not paying prepetition debts. In addition,
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the October MOR (dkt.49) appears to show lossess from most of Debtor's various businesses, and perilously low bank balances, even with the reduced dollar amount of the adequate protection payments to Beverly (less than the ongoing interest obligation). In addition, there is an internal inconsistency about postpetition adequate protection and/or lease payments: the October MOR (dkt.49, at PDF p.57 of 61) lists "0" postpetition payments not made (i.e., Debtor allegedly is postpetition current), but then the same table lists "Total Due" postpetition amounts of many thousands of dollars - which is it? Is Debtor postpetition current in payments to secured creditors and/or lessors, or not?
The tentative ruling is to direct Debtor (i) to confer with the Office of the United States Trustee and file whatever corrected MORs are necessary or appropriate, and (ii) to be prepared to address the foregoing issues at the continued status conference.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28; see above)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/17/19 at 1:00 p.m. (short continuance because Beverly's motion for relief from the automatic stay should be addressed soon). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
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[N/A: continued to 12/10/19 (dkt.43)]
Tentative Ruling for 10/1/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Cash collateral motion
Grant (subject to this Court's standard conditions, see calendar no.1, 10/1/19 at 1:00 p.m.), provided that Debtor must address why this motion was not self-calendared for hearing until over a month after the petition date, and whether, meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Budget Motion
Debtor's status report incorrectly states that a budget motion is not required by the presiding judge's procedures. Dkt. 20, p.3. See posted Procedures of Judge Bason (available at cacb.uscourts.gov) (the "Bason Procedures") Section VII.G. In addition, a budget motion appears to be particularly important in this case because most of Debtor's income and expenses are effectively hidden and/or mis-reported.
Debtor's Bankruptcy Schedule I reports that he is an interior designer/hair stylist (dkt.22, at PDF p.27), his Statement Of Financial Affairs ("SOFA") lists various "dba" enterprises that might or might not reflect other business ventures, and Debtor apparently rents out some of his properties using Airbnb, but there is no breakdown of any of this. Contrary to the instructions on line 8a of Schedule I, debtor lists only a total net dollar amount for all businesses/properties combined - $22,598.00 per month - and fails to attach a statement for each business/property showing gross receipts, ordinary and necessary business expenses, and the calculation of net income. Also, in apparent contradiction of this alleged monthly net income, the SOFA (dkt. 22 at PDF p.31) lists gross income of $20,000 for the year to date (9 months), $7,875 for 2018, and $28,223 for 2017. (Perhaps Debtor listed monthly net income instead of yearly gross income - if so he must file a corrected SOFA.)
The tentative ruling is to direct Debtor to file an amended Schedule I and an amended SOFA, and to file and serve a budget motion and any other documents that are necessary or appropriate to correct the foregoing deficiencies, no later than 9/27/19.
Bankruptcy Schedule G
Debtor lists no executory contracts or unexpired leases (dkt.22, at PDF p.24). What about Airbnb and/or other short-term or long-term rental arrangements? The tentative ruling is to direct Debtor to file an amended Schedule G no later than 9/27/19.
Cash collateral
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Even though this case was filed on 8/30/19, Debtor did not self-
calendar his cash collateral motion for hearing until over a month later, on 10/1/19 at 1:00 p.m. Meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Employment Application
The tentative ruling is to set a deadline of 9/27/19 for Debtor to file and serve local form F 2014-1.STMT.DISINTERESTED.PROF in support of Debtor's application to employ Eric Bensamochan as his bankruptcy counsel (dkt. 18). See Bason Procedures Section VII.D.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/1/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
1:00 PM
fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20
Docket 19
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
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Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such
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creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
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Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
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BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Revised Tentative Ruling for 2/18/20:
Grant in part the motion of Beverly Partners, LLC ("Beverly") for relief from automatic stay (dkt. 47). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Based on the motion papers, Debtor's opposition papers (dkt. 50), and Beverly's reply (dkt. 53), the tentative ruling is to modify the automatic stay to set deadlines - further described below - for Debtor to take steps to market and sell the property at 10838-10842 Beverly Blvd., Whittier, CA 90601 (the "Property"). This Court recognizes that Debtor has characterized the Property as his retirement security, but the tentative ruling is that there is no other way to provide adequate protection of Beverly's interest in the Property.
(1) Valuation
The tentative ruling is that Beverly's evidence is persuasive as to
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including a higher property tax assessment for valuation purposes (see Eggleston Reply
Decl., dkt.53, p.3:1-13) and that, with this adjustment, Debtor's approach to valuation would yield a value of $850,000 (id., p.3:14-17). Beverly's appraisal, in contrast, asserts a value of $795,000. See dkt.47, at PDF pp.77-end, and dkt. 53, p.3:18-21.
The tentative ruling is that the other evidence provided by Debtor and Beverly (e.g., as to appropriate discount rates, and the use of allegedly comparable properties) does not weigh in one direction or the other clearly enough for this Court to decide between the two valuations without an evidentiary hearing (or, perhaps, further declarations). Compare Eggleston Decl. (dkt.79, pp.79 et seq.) and Eggleston Reply Decl. (dkt.53) with Collins Appraisal (dkt.50, Ex.A) and Collins Decl. (dkt.50, pp.13 et seq.). Therefore, the remainder of this tentative ruling considers both valuations.
(2) 11 U.S.C. 362(d)(1)
Under section 362(d)(1) this Court must consider any lack of adequate protection (or other "cause" for relief). One form of adequate protection is a sufficient equity cushion.
The tentative ruling is that, unless an equity cushion is very large, an eroding equity cushion may place Bevery's interest in the Property at greater risk. Therefore, this Court must consider Beverly's equity cushion (if any), both as of the petition date (8/30/19) and currently.
In calculating that equity cushion the tentative ruling is that this Court must consider (i) the senior real estate tax lien (Claim No.2-3) of $22,417.08 as of the petition date, plus postpetition interest at 18% for the current calculation (id., p.2, line 9), plus (ii) Beverly's lien of approximately
$721,702.10 as of the petition date, or approximately $741,879.34 as of 11/7/19 (dkt.47, pp.7 & 11), plus postpetition interest at 17% for the current calculation (id., Ex.H, at PDF p.141) (POC 5-1, line 9), plus (iii) any other charges that are allowable under 11 U.S.C. 506(b) (e.g., ongoing attorney fees), minus (iv) adequate protection payments (3 x $3,313.63 through Beverly's 12/3/19 Reply, dkt.dkt.53, p.2:15, plus two more payments for January and February, for a total of 5x$3,313.63 = $16,586.15).
Based on these numbers, the tentative ruling is that, even using Debtor's valuation method (adjusted as set forth above), the combination of a modest equity cushion (substantially below 20%) and the current (low)
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adequate protection payments (very substantially below the contractual default or non-default interest rates) are insufficient. They do not provide Beverly with protection of its interest that is truly "adequate" as required by section 362(d)(1).
Therefore this Court "shall" grant some form of relief from the automatic stay. 11 U.S.C. 362(d). That relief need not necessarily be termination of the automatic stay: it can take the form of modifying or conditioning the automatic stay. Id. The tentative ruling is that, because Beverly itself would have to take time to market and sell the Property (if it were to attempt to maximize value and not risk its own recovery), Beverly will be adequately protected by providing Debtor with time in which to do the same.
(3) Amount of time to market and sell the property
The tentative ruling is to set deadlines of (a) 2/28/20 for Debtor to file and serve an application to employ a real estate agent for the Property, (b) 4/24/20 for Debtor to file and serve a motion under 11 U.S.C. 363(b) and (f) to sell the Property, subject to overbids, (c) 5/19/20 for a hearing (and auction, if there are any overbidders), and (d) 6/23/20 to close the sale (either to the winning bidder or a backup bidder) and pay Beverly out of escrow. If Debtor fails to meet those deadlines, the tentative ruling is that Beverly would be authorized to file and serve a declaration of default and lodge a proposed order terminating the automatic stay.
Meanwhile, the tentative ruling is to monitor Debtor's progress by setting a continued hearing on this motion to the same time as the continued status conference (see calendar no. 23, 2/18/20 at 1:00 p.m.).
(4) 11 U.S.C. 362(d)(2)
The tentative ruling is that for purposes of section 362(d)(2)(A) (whether Debtor has any equity in the Property) this Court must take into account the IRS lien (Claim No.7-1) of $64,423.96 as of the petition date (id. at PDF pp.2&4-10), plus postpetition interest of 5% for the current calculation. This Court notes that the IRS claim is secured by any property owned by Debtor, but there is no evidence that equity in any other property will decrease the amount of this claim.
The result would be that under Beverly's valuation Debtor would have no equity in the property, but under Debtor's valuation he would have some
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equity. Because the burden of proof is on Beverly on this issue (11 U.S.C. 362(g)(1)), the tentative ruling is that on the present record Beverly has not established an entitlement to relief under section 362(d)(2). All rights are reserved for Beverly to continue seeking to establish that element with additional evidence, and for Debtor to oppose any such evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By
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Simon Aron
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BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
Docket 962
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20
Docket 1
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Debtor's motion for order authorizing Debtor to enter into plan treatment negotiations with unsecured creditors (the "Plan Negotiations Motion," dkt. 1011) and joinder of Committee (dkt.1018)
The parties should be prepared to address the issues raised by the Plan Negotiations Motion.
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1011
Please see the tentative ruling for the status conference (calendar no. 3, 3/3/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
10:00 AM
vs DEBTOR
Docket 37
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fabian Cruz Represented By
Onyinye N Anyama
Joint Debtor(s):
Karen Cruz Represented By
Onyinye N Anyama
Movant(s):
LoanDepot.com,LLC Represented By
Lemuel Bryant Jaquez
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Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 60
Deny, for the reasons set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Motion's allegations are insufficient
The motion does not allege any missed payments. It relies solely on Debtors' alleged bad faith and the assertion that the filing of the bankruptcy petition commencing this case (over a year ago, on 10/10/2018) was part of a "scheme" to delay, hinder, or defraud creditors. The sole grounds for these assertions appear to be Debtors' three prior bankruptcy cases since 2015.
Those allegations, by themselves, are insufficient. See, e.g., In re Jiminez (unpublished) (9th Cir. BAP 3/3/2020) (BAP Nos. CC-19-1177-TaLG, CC-19-1186-TaLG), at p.3 (holding that the "unadorned assertion" that debtor had filed three bankruptcy cases over 10 year period does not "unfailingly equate" to a scheme to delay, hinder, or defraud creditors) (decision available at:
http://cdn.ca9.uscourts.gov/datastore/bap/2020/03/03/Jimenez%20Memo%2019-1177%2019-1186.pdf)
Debtor's assertions are largely unpersuasive, but that is not enough to carry Movant's burden
True, Debtors' opposition (dkt. 62) asserts several arguments that this Court does not find to be very persuasive. Debtors (a) note that their first two
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bankruptcy cases were filed without an attorney; (b) claim they "did not understand [their] responsibilities"; and (c) argue that their motive was "to save our residence from foreclosure and to reorganize our debts." Debtors assert that these things (and some alleged bad advice by a "Mortgage Specialist") should excuse their failure to file required case commencement documents and their use of the wrong chapter of the Bankruptcy Code in their second case (chapter 7, which they "found out" does not "have a repayment plan to save our home," unlike chapter 13). Dkt.62, at PDF p.4:12-25.
Debtors' excuses fail to address how, despite the mandatory course under 11 U.S.C. 109(h), they failed so completely to understand the different chapters of the Bankruptcy Code, and their responsibilities as debtors in bankruptcy. Many other individuals manage to understand those things and file the required documents.
As for the motive to save the family home, that is certainly understandable, but that is irrelevant to whether the methods used to save that home amount to good or bad faith, or a scheme to delay, hinder, or defraud creditors. To use an extreme example, solely to illustrate the distinction, a hypothetical debtor might have an entirely legitimate desire to pay the mortgage and save the family home, but that does not justify robbing a bank to make the mortgage payment.
Debtor's opposition also argues that this case cannot be found to have been filed in bad faith because this Court has made good faith findings, both by implication in confirming Debtor's chapter 13 plan and expressly in this Court's Order Granting Motion For Order Imposing A Stay Or Continuing The Automatic Stay (dkt. 26). The last-referenced order states that "the present case was filed in good faith and any presumption of bad faith has been adequately rebutted." Dkt. 62, PDF p.6, para. 17. This Court is not persuaded by these arguments, because those findings of good faith were for entirely different, narrow purposes. For example, as noted in this Court's continuing the automatic stay under 11 U.S.C. 362(c)(3), the stay protects each creditors against other creditors, who might otherwise seize assets in a "race to collect." Therefore, parties in interest may elect not to oppose a "good faith" finding for purposes of section 362(c)(3) without being deemed to concede good faith for all purposes.
In sum, Debtors' assertions that they must or should be found to have acted in good faith are not entirely persuasive. Every one of their arguments does not carry much weight.
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That said, the burden is on Movant in the first instance to establish
"cause" for relief from the automatic stay. It has not met that burden, as noted in the preceding section of this tentative ruling.
Additional facts and circumstances
This Court takes judicial notice that Debtors' repayment history has been uneven. They have fallen into one default or another for years, so Movant's arrears are being paid very slowly. See, e.g., Case No. 2:16-
bk-12829-SK, dkt.90 (Trustee's Final Report and Account). In addition, as noted above, Debtors have not always been attentive to their responsibilities as debtors in bankruptcy. Moreover, this Court takes judicial notice that in their most recent prior case the Chapter 13 Trustee alleged that Debtors failed to provide annual reports of their income and expenses, and Debtors did not contest that assertion. See Case No. 2:16-bk-12829-SK, dkt.77 et seq.
But on the other hand Debtors have made payments (albeit with defaults) for several years. That is a powerful indicator that Debtors are making a very concerted effort to pay Movant, and lack either bad faith or an intent to delay, hinder, or defraud creditors.
For all of the foregoing reasons, the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edward Jenkins Jr. Represented By Thomas B Ure
Joint Debtor(s):
Iris Michele Hearn-Jenkins Represented By
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Movant(s):
Thomas B Ure
HSBC Bank USA, National Represented By Kelsey X Luu Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ANDREW KWIAT
vs DEBTOR
Docket 123
Grant in part, so as to permit Movant to commence the lengthy foreclosure process, including a notice of default and other steps but not including any actual notice of foreclosure sale absent further order of this Court. In addition, the tentative ruling is to permit Movant to seek such a further order by filing and serving a supplemental 21-day notice that places this motion back on calendar (on any available self-calendaring date), rather than requiring Movant to incur the expense of preparing a new motion.
Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Chapter 7 Trustee's Opposition (dkt. 130), Creditor Andrew Kwiat's reply (dkt. 131).
Reasons:
The tentative ruling is to deny the motion as to 11 U.S.C. 362(d)(1) because Mr. Kwiat has conceded the insurance issue and that he is protected by an adequate equity cushion. As for relief under 11 U.S.C. 362(d)(2), the tentative ruling is to grant limited relief as set forth above, based the Chapter 7 Trustee's listing price and purchase offers on the property. Although Mr.
Kwiat is correct that the Trustee's representations about offers are not evidence, there are good reasons for a chapter 7 trustee to wish to keep offers confidential so as to maximize other potential bidders' offers. And even
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without evidence of value, Mr. Kwiat is protected by (a) the substantial equity above his lien and (b) the Trustee's efforts to sell the property, because the "proof is in the pudding" - i.e., if the Trustee is able, within a reasonable time, to file a motion for approval of a sale that pays Movant then Movant's foreclosure presumably will be unnecessary; and if the Trustee cannot do that then Movant can proceed to foreclosure.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Christian Rossil Represented By Todd B Becker
Movant(s):
Andrew Kwiat Represented By Donald W Reid
Trustee(s):
David M Goodrich (TR) Pro Se
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THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 31
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juana Rangel Represented By
Andrew Moher
Movant(s):
The Bank of New York Mellon fka Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CENLAR FSB
vs DEBTOR
Docket 31
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
James Sandoval Represented By Ruben Fuentes
Movant(s):
Cenlar FSB as servicer for Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 147
Grant in part, by (A) authorizing Movant to proceed with issuing a notice of default ("NOD") and all other steps preliminary to a foreclosure sale, but (B) without relief to conduct the foreclosure sale itself at this time, and (C) deny "in rem" relief at this time and (D) continue the motion to 5/19/20 at 10:00
a.m. for further proceedings. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed: motion of Wilmington Savings Fund Society, FBS ("Movant") for relief from stay (dkt. 147, the "R/s Motion"); James Haycock's response (dkt. 157); Shiv Raj & Saroj Gupta's opposition (dkt. 158, the "Gupta Opposition"); Debtor's opposition (dkt. 159) and supporting papers (dkt. 160, 161, 162); Andrea Friedlander's joinder to Gupta Opposition (dkt. 163); Movant’s reply (dkt. 165) and evidentiary objections (dkt. 166)
Analysis
Overview
Debtor has not met at least one of the deadlines established by this Court's order continuing the automatic stay pursuant to 11 U.S.C. 362(c)(3) (dkt. 31, the "Stay Order"). The tentative ruling is that this is prima facie "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1).
Alternatively, the tentative ruling is that Movant has established a prima
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facie showing of a lack of adequate protection. That is also cause for relief. 11 U.S.C. 362(d)(1).
Altenatively, the tentative ruling is that Movant has established a prima facie showing that the subject property is not necessary to an effective reorganization (11 U.S.C. 362(d)(2)(B)). It is uncertain at this stage whether there is any equity in the subject property above all liens, and on that one issue Movant has the burden of proof, so the tentative ruling is not to rely on 11 U.S.C. 362(d)(2) in granting the relief set forth herein.
In addition, to the extent Debtor seeks reconsideration of the Stay Order, the tentative ruling is that she has not established sufficient legal or equitable grounds to do so.
Background
The Stay Order
This is Debtor's second bankruptcy case. The first case (Case No. 2:19-bk-16825-NB) was filed on 6/11/19 and dismissed on 7/3/19 because Debtor was ineligible to be a chapter 13 debtor.
Shortly thereafter, on 7/17/19, Debtor filed this case. She moved to continue the automatic stay pursuant to 11 U.S.C. 362(c)(3) (dkt. 11).
Movant's predecessor-in-interest, Patch of Land Lending, LLC ("Patch"), opposed that motion (dkt. 25).
After consideration of the filed documents and records of this Court, and oral arguments, this Court adopted its tentative ruling and entered an order granting the motion but, as a condition of continuation of the automatic stay, set a number of deadlines for Debtor to move this case forward and to ensure that the interests of Patch (among others) were not adversely affected - i.e., that they remained adequately protected (dkt. 31, the "Stay Order"). With respect to Patch's lien, this Court set deadlines as follows:
The tentative ruling is to grant [Debtor's] motion [to continue the automatic stay] in part and deny it in part by setting deadlines for Debtor to accomplish each of the items listed below. If Debtor fails timely to do so, objecting creditor Alliance Portfolio, Private Equity Finance, Inc. ("Alliance") (dkt. 21) and objecting creditor Patch of Land Lending, LLC ("Patch") (dkt. 25) would be authorized to file and serve motions for relief from the automatic stay on shortened time: a 14 day notice period, with any oppositions due 7 days prior
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to the hearing. The items that Debtor must accomplish are:
Bel Air refi/debt restructuring: by 9/24/19, file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at
stopping the running [of] postpetition default interest owed to Patch (and any other creditors whose interests are secured by that property and who might be able to charge default interest under 11
U.S.C. 506(b)) and
interest payments to Patch: if any such treatment of Patch has not been accomplished by 11/12/19, pay Patch on that date all accrued postpetition interests, at the non-default interest rate, and thereafter maintain current in such payments . . . .
[Stay Order, dkt.31 (emphasis added)]
Debtor alleges that she has met the first deadline above by filing her motion to disallow Movant's default interest. For purposes of this tentative ruling, this Court expresses no view on that issue. But Debtor does not dispute that she has failed to meet the second deadline: she has not paid accrued and ongoing postpetition interest at the nondefault rate. See dkt. 147, Donatoni Decl., para. 13; dkt. 159, p. 9:28-10:2 (PDF pp. 12-13).
Other developments
Two other developments, described below, may provide context. But they do nothing to amend the second deadline in the Stay Order, quoted above. So this Court ultimately concludes that these two other developments are not presently relevant, although both might be relevant in future.
First, on 9/26/19 Debtor filed a motion to obtain postpetition financing (the "Financing Motion," dkt. 75). But for the reasons set forth in this Court's tentative ruling and on the record, this Court denied that motion. Although the Finance Motion might be evidence of Debtor's efforts to move this case forward, and perhaps Debtor will seek approval of new financing at a later time, these things are different from showing compliance with the Stay Order.
As an aside, this Court directed Debtor to lodge a proposed order, but it appears Debtor has not done so. Accordingly, Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing and attach a copy of the tentative ruling, thereby adopting it as this Court's final ruling (subject to any changes
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ordered at the hearing).
Second, on 11/12/19, Debtor filed a motion challenging the validity of
Movant's assertion that it is entitled to default interest and late fees (dkt. 123, the "Default Interest Motion"), but the hearing on that motion has been continued several times (dkt. 129, 133, 141) and the current hearing is set for 5/5/20 at 1:00 p.m. (dkt. 164). Even if Debtor were to prevail on the Default Interest Motion, that might or might not establish that Debtor has any equity in the subject property - that issue is disputed. For present purposes, the point is only that this Court cannot presume that Debtor will prevail, and therefore any analysis of Movant's claim, or of the equity in the subject property, cannot presume that Movant's claim for default interest will be disallowed.
Grounds for relief under 11 U.S.C. 362(d)(1)&(2)
Debtor's failure to meet one or more deadlines in the Stay Order is, by itself, "cause" for at least some form of relief from the automatics stay
The tentative ruling is that Movant has established "cause" for relief (11 U.S.C. 362(d)(1)) simply by showing that Debtor has missed one (or more) of the deadlines in the Stay Order. That order conditionally found that Debtor had met her burden to overcome the presumption that she has not filed this case in good faith, but only on the condition that she "must" meet the deadlines in that order - i.e., she had to demonstrate her good faith by adequate prosecution of this case. Now Debtor has the burden to show, by clear and convincing evidence, that she can overcome the presumption of a lack of good faith under 11 U.S.C. 362(c)(3) even though she has not met one or more deadlines in the Stay Order. See Stay Order (dkt.31, Ex.1,
pp.3-5).
The tentative ruling is that Debtor has not met this burden on the present record. Debtor offers various excuses, but (as described below) they are unsupported by any substantial evidence or even a meaningful description of her prospects of making further progress and, meanwhile, protecting creditors' interests.
Therefore the tentative ruling is that it is appropriate to grant Movant the limited relief set forth at the start of this tentative ruling. That limited relief will permit Debtor some additional time to demonstrate (belatedly) her good faith.
"Adequate protection," and necessity of the subject property to an
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"effective" reorganization
Alternatively - even if this Court were persuaded not to revisit the "good faith" issue under 11 U.S.C. 362(c)(3), as set forth above - the reasoning underlying the Stay Order still applies. One reason that this Court imposed the deadlines in the Stay Order was that those deadlines were part of the protection of Movant's interest that was required for "adequate protection" (11
U.S.C. 362(d)(1)). The burden is on Debtor to establish that Movant is protected by an equity cushion that is large enough to provide adequate protection despite missing the deadline to commence adequate protection payments. To date, Debtor has not done so. See Stay Order (dkt.31, Ex.1, part "(3)", entitled "Adequate protection of [Movant's] interests [in the subject property").
Alternatively, the Stay Order set the deadlines therein as a method of measuring the progress that Debtor would need to show to establish that the subject property was necessary to an "effective" reorganization (11 U.S.C.
362(d)(2)(B)). See Stay Order (dkt.31, Ex.1, part "(2)(d)," entitled "Apparently sensible strategy [for attempting an effective reorganization]"). On this issue, too, Debtor has not followed through: at this later stage of the bankruptcy case (as described below), Debtor has not shown that she still could file a plan of reorganization that will have "a reasonable possibility of being confirmed within a reasonable time." United Sav. Assn. of Tex. v. Timbers of Inwood Forest Assoc’s, Ltd., 484 U.S. 365, 375-76 (1988) (citation omitted).
In reaching this tentative ruling, this Court interprets 11 U.S.C. 362(d)
(2) as requiring a stronger possibility of confirmation the longer the case is pending. But the tentative ruling is to reject any specific stages (such as deadlines keyed to the expiration of any exclusivity period) or any specific adjectives that attempt to capture all of the facts and circumstances that might be presented at each stage (such as progressing from a showing that a succcessful reorganization is "plausible" to being "probable" to being "assured"). Cf. dkt.147, pp.6:18-7:4 (citing In re Sun Valley Newspapers, 171
B.R. 71, 75 (9th Cir. BAP 1994)). This Court interprets Sun Valley as illustrating the type of analysis that bankruptcy courts typically apply in applying the "effective reorganization" standard of 11 U.S.C. 362(d)(2)(B), not as imposing any mandate that all bankruptcy courts must follow precisely such deadlines and adjectives. Alternatively, the tentative ruling is that this Court would reach the same result even if that were Sun Valley's holding (and even if this Bankruptcy Court were to hold that BAP decisions are binding,
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which has not been definitively established in the Ninth Circuit).
Debtor's burden under the foregoing standards
Debtor faces an uphill battle. As this Court explained in the Stay Order, Debtor faces "numerous hurdles to a successful chapter 11 restructuring of her finances" (id., Ex.1, p.2), and her evidence of an ability to do so was "woefully inadequate" to show that she could feasibly reorganize at the time of that order, but at that "very early stage of this bankruptcy case" this Court afforded Debtor considerable leeway. Id., Ex.1, p.3. Now, at this later stage, Debtor has substantially less leeway, and she offers many excuses but no significant evidence of progress. It is possible that negotiations or litigation with Debtor's insurer will lead to something, but there is no evidence that they will.
Debtor's counter-arguments appear to rely on two possibilities. One possibility would be a valuation of the subject property that is sufficiently great to provide so large an equity cushion that no periodic payments to Movant are required (perhaps in conjunction with disallowing Movant's default interest and late charges). Another possibility would be some breakthrough with Debtor's insurer that would fund further repairs to the property in time to obtain a refinancing or establish cash flow to make periodic payments.
Although Debtor states that "[t]here are a few lenders very interested in [] refinancing the Property now that there is some solid progress being made on the insurance claim" (dkt. 159, p.15:2-3), Debtor has not attached evidence supporting these assertions. The declaration of Craig Bordon of ClaimsXP (the proposed claims adjuster) provides no details about the status of his efforts to obtain more insurance proceeds (dkt. 159, pp.23-24).
Finally, Debtor makes it clear that she cannot sell the Bel Air Property to capitalize on any equity. According to Debtor, the anticipated capital gains taxes could be around $1 million, which would seriously if not entirely deplete any equity in the property (id., p. 17:1-4).
The tentative ruling is that Debtor has not met her burdens under any of the foregoing analysis, but she will continue to have the opportunity to attempt to show these things, if she can do so in time. Meanwhile it is appropriate to grant relief from the automatic stay as set forth at the start of this tentative ruling.
Valuation
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The tentative ruling is that this Court cannot resolve the parties'
valuation disputes without an evidentiary hearing, or possibly some other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers. The parties are directed to address their preferred methods of valuation, and associated deadlines and other procedures, at the hearing.
Treating Debtor's opposition as a request for reconsideration
Debtor's opposition could be construed as including a request for this Court to reconsider the deadlines in the Stay Order under Rule 9024 (Fed. R. Bankr. P.). But the tentative ruling is that Debtor must file a separate motion if she seeks such relief, and in any event she has not established sufficient legal or factual grounds for reconsideration.
Evidentiary objections
The tentative ruling is that Movant’s evidentiary objections are well taken (dkt. 166), except that any untimeliness is insufficient to warrant striking the proffered evidence. But even considering all of Debtor’s proffered evidence, the tentative ruling is that such evidence would not alter the outcome.
Mr. Haycock's request for relief if Movant is granted relief (dkt. 157)
The tentative ruling is to grant Mr. Haycock's request that, if Movant is granted relief, it should be on the condition that parallel relief be granted to Mr. Haycock.
Relief applicable notwithstanding any future bankruptcy cases ("in rem" relief)
The tentative ruling is that, although Debtor's failure to meet the deadlines in the Stay Order has reopened the question of Debtor's good faith, that is not quite enough to establish that the filing of the petition commencing this case was part of a "scheme" to delay, hinder, or defraud creditors (or any other grounds for in rem relief). Such relief requires a more showing of more eggregious acts, or failures to act, than what is required to show "cause" for relief in this current bankruptcy case.
Conclusion
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This Court is empathetic to Debtor, and to other creditors whose
interests might be prejudiced if Movant proceeds towards foreclosure. But in the nearly nine months that Debtor has been in bankruptcy (in her prior case and this one), she has failed to adequately use the tools available to her under the Bankruptcy Code to pay-off Movant's lien, restructure her finances, and/or establish that Movant is adequately protected, absent relief of the sort granted at the start of this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joshua L Scheer
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FREEDOM MORTGAGE CORPORATION
vs DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Maria De Jesus Garibay Represented By Sam Benevento
Movant(s):
Freedom Mortgage Corporation Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] DEUTSCHE BANK NATIONAL TRUST CO
vs
DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
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If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that, although the history of this case and Debtor's prior bankruptcy case call into question whether Debtor might have participated in such a scheme, there is not notice that Movant seeks such a ruling against Debtor.
As this Court has noted on other occasions, debtors receive many papers, not all of which require action. A debtor who receives a motion for relief from the automatic stay regarding a property in which the debtor might not assert any interest (in a hijacked case), or that the debtor is prepared to surrender, might not understand that there is any need to respond to the motion in order to avoid possible prejudice to the debtor (see below).
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re
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Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bianca C Amezcua Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Daniel K Fujimoto Caren J Castle
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Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NA vs
DEBTOR
Docket 15
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
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If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Zachary Henley Pro Se
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 13
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)
(4).
To the extent, if any, that the motion seeks to terminate the automatic
stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State
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laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it
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turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Joanna J Ochoa Garcia Pro Se
Movant(s):
U.S. BANK, NA AS LEGAL TITLE Represented By
Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THOMAS V. FOSMIRE
vs DEBTOR
Docket 9
Grant in part and continue in part to 3/31/20 at 10:00 a.m. as set forth below. Appearances are not required on 3/10/20.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property
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(sometimes referred to in the mortgage context as the "original borrower"). Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Co-borrower, Juana Sanchez.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant (i) serving, on the day after the current hearing date, the motion papers and notice of the continued hearing date, and (ii) filing that notice and a proof of service no later than the next day. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Juan Carlos Cuevas Pro Se
Movant(s):
Becky J. Fosmire Represented By Matthew D Pham
Thomas V. Fosmire Represented By Matthew D Pham
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ZB N.A
vs DEBTOR
Docket 43
- NONE LISTED -
Debtor(s):
Jennifer Ann Kokoris Represented By Nima S Vokshori
Movant(s):
ZB N.A. dba California Bank & Represented By Glenn R Bronson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MECHANICS BANK
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Keyshia Nicole Littleton Represented By Scott Kosner
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NA
vs DEBTOR
Docket 33
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
SHELLI D. CROSS Represented By Misty Wilks
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Aram Hayzavakyan Represented By
Vilen Khachatryan
Movant(s):
Cab West, LLC Represented By Jennifer H Wang
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 7
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas Wallace Represented By Eva M Hollands
Movant(s):
Douglas Wallace Represented By Eva M Hollands
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 3/10/20:
Appearances required. This matter was continued to this date to allow time for the parties to negotiate regarding the issues addressed in the tentative ruling for 2/18/20 (reproduced below). Has this matter been resolved?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This matter was continued to this date (a) to allow time for Debtor to substitute in new counsel and (b) for Debtor to determine whether she can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments. The tentative ruling is to set a deadline of 4/6/20 for Debtor to file and serve a motion seeking authorization for one of those methods of curing her defaults, to be self- calendared for hearing no later than 4/30/20 at 8:30 a.m. Meanwhile, the tentative ruling is to continue this hearing to 4/7/20 at 10:00 a.m.
Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that Debtor as the owner of the property is competent to provide an opinion as to its value, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
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present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By William D Bowen
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 33
Debtor(s):
Robert Samson Fear Represented By Onyinye N Anyama
Movant(s):
Wells Fargo Bank, National Represented By Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 75
Tentative Ruling for 3/10/20 (same as for 2/4/20):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Wilmington Trust, National Represented By Robert P Zahradka Cassandra J Richey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Tentative Ruling for 3/10/20:
Appearances required. This matter was continued to this date to allow time for the parties to review Debtor's payment history. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
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present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ROUNDPOINT MORTGAGE SERVICING CORP
vs DEBTOR
Docket 29
Debtor(s):
Eduardo Alvarez Represented By William G Cort
Movant(s):
RoundPoint Mortgage Servicing Represented By
Erin M McCartney Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
QUICKEN LOANS INC.
vs DEBTOR
Docket 27
Debtor(s):
Sonia Loera Represented By
Ramiro Flores Munoz
Movant(s):
Quicken Loans Inc. Represented By Kelsey X Luu Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 41
Debtor(s):
Tiresa Dunelle Ulufale Represented By Elena Steers
Movant(s):
The Bank of New York Mellon, et al Represented By
Alexander G Meissner Diana Torres-Brito
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:19-01149 Cathay Bank, a California banking corporation v. Schaefer Ambulance
Docket 1
Tentative Ruling for 3/10/20:
Continue this status conference to 6/16/20 at 11:00 a.m. as a holding date, to be taken off calendar once this matter is dismissed pursuant to the parties' approved settlement agreement. See main case, dkt. 512 and 531.
Appearances are not required on 3/10/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
Schaefer Ambulance Service, Inc, a Represented By
Monserrat Morales Craig G Margulies
11:00 AM
Louella M McNeal Represented By Frances M O'Meara
Samir Yanni Represented By
Michael J Khouri
Leslie M. McNeal Represented By Frances M O'Meara
Marlene L. McNeal Represented By Frances M O'Meara
James McNeal III Represented By Frances M O'Meara
Marlene McNeal Represented By Frances M O'Meara
James McNeal III Represented By Frances M O'Meara
Leslie M McNeal Represented By Frances M O'Meara
Plaintiff(s):
Cathay Bank, a California banking Represented By
Michael G Fletcher Reed S Waddell Gerrick Warrington
11:00 AM
Docket 87
Revised Tentative Ruling for 3/10/20:
Deny/overrule the claim objection. Appearances are not required.
Proposed order: Chao is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Introduction
Creditors Wei Dong, Wenrui Wang and Zongzhi Hu (the "Alleged Employees") have filed an objection (dkt. 87) to Proof of Claim 2 ("Claim 2"), filed by claimant the Law Offices of Lynn Chao, APC ("Chao"). This Court has reviewed Chao’s opposition (dkt. 104, 105) and the Alleged Employees’ reply (dkt. 110).
As a preliminary matter, it is not clear to this Court why this bankruptcy case was filed, when the only issues being litigated here appear to be the subject of pending litigation in State Court. Nevertheless, Debtor chose to file this case (perhaps to delay those State Court proceedings, or perhaps for other reasons). Debtor having chosen this forum, the Alleged Employees took advantage of the opportunity to seek discovery that is broader in bankruptcy than it is outside of bankruptcy. Eventually Chao, perhaps acting for Debtor’s affiliated parties, countered by seeking to disallow the Alleged Employees' claims and, when that did not work, by seeking her own discovery in this forum from the Alleged Employees. Now the Alleged Employees, perhaps as a method of blocking any discovery or other proceedings by Chao, have objected to Claim 2.
Whether or not these apparent motives are true, this Court is concerned about the amount of litigation over these issues. Nevertheless,
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the claim objection is properly before this Court and the tentative ruling is as follows.
Legal standard
A proof of claim executed and filed in accordance with Rule 3001(f) (Fed. R. Bankr. P.) constitutes prima facie evidence of the validity and amount of the claim. To overcome the presumption of validity, an objector "must produce evidence tending to defeat the claim that is of a probative force equal to that of the creditor’s proof of claim." In re Consolidated Pioneer Mortgage, 178 B.R. 222, 226 (9th Cir. BAP 1995). More precisely, "the objector must produce evidence which, if believed, would refute at least one of the allegations that is essential to the claim’s legal sufficiency," and if the objector produces "sufficient evidence to negate one or more of the sworn facts in the proof of claim, the burden reverts to the claimant to prove the validity of the claim by a preponderance of the evidence." Id.
In addition, even if the proof of claim is not entitled to "prima facie" validity, the statute directs that claims must be allowed unless there is a specific basis to object to them. See 11 U.S.C. 502; In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424 (9th Cir. BAP 2005).
The Alleged Employees have not cited authority that they have any legal basis to disallow Claim
The Alleged Employees’ principal stated basis for disallowance of Claim 2 is that the Chao attorney who prepared, signed and filed Debtor’s petition was not authorized to practice law in California or admitted to practice before this Court. There is no citation to any authority that this (a) rendered the filing of the petition void or voidable, or (b) rendered those legal services valueless.
The Alleged Employees jump to the conclusion that Chao inevitably will be ordered to disgorge the $5,000 in fees already received. They appear to argue that this presumed disgorgement should be set off against Chao's Claim 2 and reduce it to zero.
The Alleged Employees' reliance on 11 U.S.C. 502(b)(4) is misplaced.
The Alleged Employees have not addressed how the pre-petition services that form the basis for Claim 2 exceeded the reasonable value of what Chao charged.
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Evidentiary issues
Chao has asserted evidentiary objections (dkt. 105). But the tentative ruling is that this Court declines to rule on those objections because it would not change the outcome. Even if this Court were to consider all of the Alleged Employees’ evidence filed in support of the claim objection, the tentative ruling is that they still have failed to carry their burden for the reasons set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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Docket 82
Revised Tentative Ruling for 3/10/20:
Grant the motion for protective order. Appearances are not required.
Proposed order: The Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Background
On 1/27/20, creditors Wei Dong, Wenrui Wang and Zongzhi Hu (the "Alleged Employees") filed an ex parte motion for protective order prohibiting the Law Offices of Lynn Cha, APC ("Chao") from issuing any discovery from them in connection with this case (dkt. 82, the "Motion for Protective Order"). In advance of other hearings in this case scheduled for 2/18/20, this Court issued the following tentative ruling addressing the motion:
The Alleged Employees' Motion for Protective Order (dkt. 82)
This motion was presented on an ex parte basis. No response has been filed, and until now this Court taken no action on this - neither granting nor denying this motion.
The tentative ruling is temporarily to maintain the status quo.
Specifically, the tentative ruling is to grant a temporary stay of any discovery against the Alleged Employees (as distinguished from discovery by the Alleged Employees, which may go forward), and direct the Alleged Employees to file and serve a notice, no later than 2/20/20, setting this matter for hearing on 3/10/20 at 11:00 a.m., concurrent with the Alleged Employees' objection to the Law Offices of Lynn Chao, APC's proof of claim, with any opposition papers due 3/3/20 and any reply at the hearing. [See tentative
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ruling for Calendar no. 2.10, 2/18/20 at 11:00 a.m.]
On 2/19/20, the Alleged Employees gave notice of this hearing (dkt. 97), but as of the preparation of this tentative ruling, Chao has not filed an opposition.
Analysis
Chao's alleged lack of standing
In support of the Motion for Protective Order, the Alleged Employees argue that Chao lacks standing to seek discovery relevant to the extent and validity of their claim against Debtor’s estate because Chao is not a creditor. But for the reasons set forth in this Court’s tentative ruling denying the Alleged Employees’ objection to Chao’s proof of claim (see tentative ruling for calendar no. 2, 3/10/20 at 11:00 a.m.), the tentative ruling is that Chao has standing to seek discovery related to their claim.
The Alleged Employees also assert grounds not included in their objection to Chao's proof of claim - namely, that Chao could not have asserted any claim, because that would have disqualified her, citing In re CIC Inv. Corp., 175 B.R. 52 (9th Cir. BAP 1994). But CIC was a chapter 11 case involving postpetition services for the "debtor in possession," as trustee for the benefit of creditors, by an attorney who also asserted a secured claim against the debtor. It has no relevance to Chao's services to a chapter 7 debtor, who is not a trustee for the benefit of creditors.
Sequence of discovery
Alternatively, the Alleged Employees argue that it is premature to permit Chao to seek discovery from them because it is not yet known whether this will be an asset estate that will provide any distributions to creditors. The tentative ruling is to grant the motion on this basis and stay all discovery sought from the Employees absent further order of this Court. See also In re Cobbs, 2018 WL 5289698, at *8, 2018 Bankr. LEXIS 3293, at *22 (9th Cir.
BAP Oct. 24, 2018) (Pursuant to Civil Rule 26, made applicable in bankruptcy by Rule 7026, "bankruptcy courts have the power to control the sequence and timing of discovery").
Alternatively, the tentative ruling is that a protective order is warranted because the discovery sought from the Alleged Employees appears to be duplicative of the issues being litigated in the State Court litigation. Unless and until Chao shows otherwise, it appears appropriate to defer any discovery
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from the Alleged Employees in this forum.
No stay of Employees’ pending Rule 2004 discovery
As this Court has previously ruled, nothing in the foregoing tentative ruling is intended to limit the Alleged Employees’ pending discovery regarding Debtor and its affiliates under Rule 2004 (Fed. R. Bankr. P.). The quid pro quo of Debtor having obtained the benefit of bankruptcy relief is that creditors are entitled to request discovery pursuant to Rule 2004. In addition, this Court previously has ruled that Chao has waived and/or forfeited its rights to object on new grounds.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Movant(s):
Wei Dong Represented By
Mark Fang
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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fr. 3/3/20
Docket 1011
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (calendar no. 2, 3/10/20 at 11:30 a.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 3, 3/3/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20
Docket 1
Tentative Ruling for 3/10/20:
Appearances are not required.
Current issues
Debtor's motion for order authorizing Debtor to enter into plan treatment negotiations with unsecured creditors (the "Plan Negotiations Motion," dkt. 1011) and joinder of Committee (dkt.1018)
Grant, subject to the following:
sustain Debtor's position regarding the non-inclusion of objecting to the Plan on "other" grounds (i.e., other than because the creditor believes the Plan does not include the terms of their agreement) (dkt.1019, p.2:21-22, and Ex.1, p.3:2-3), because of (x) the risk of confusion and (y) the fact that, in connection with any proposed plan, creditors will be notified of their rights to object (if they have the right and grounds to do so);
replace the phrase, "this is a BUSINESS RISK which you, and all her creditors accept and must be considered by you ..." (emphasis added), with the phrase, "this is a BUSINESS RISK which you, and all her creditors, must consider ..." (dkt.1019, Ex.1, p.3:13-15);
fill in the "cash" amount with whatever is the dollar amount listed on the most recent Monthly Operating Report (id., p.4:15);
correct the word "estimates" (id., p.4:21); and
include, in the proposed order granting the motion, an ordering paragraph stating that "Debtor is directed, prior to any negotiations with any creditor, to provide such creditor with a copy of (A) this order and (B) the "Statement To Be Provided To Creditors Making Payment Agreements
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With Dana Hollister" (id.), or reasonably equivalent language.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date.
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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Docket 6
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
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Docket 1
Tentative Ruling for 3/10/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Debtor's Disclosure Statement (dkt. 61) and Plan (dkt. 62), and incorporated schedules (dkt.15, 21)
Approve the Disclosure Statement on an interim basis, subject to minor corrections noted below, and set a combined hearing on final approval and Plan confirmation concurrent with the continued status conference (see below). Debtors should:
delete extraneous pages (see dkt.62 at PDF pp.11&13 (unused continuation sheets) and dkt.61 at PDF pp.11 (Ex.C3), 17-20 (Ex.E, for unsused Classes 2D through 2K), 23-24 (Ex.F, unused continuation sheets));
add more months of data on Ex.D (dkt.61 at PDF p.13) from the latest MORs (dkt.64, 65); and
add docket and page references in Endnote 5 (dkt.61, at PDF p.28, n.5).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (order, dkt. 25, timely served, dkt. 28).
Procedures order: dkt. 8 (timely served, dkt. 22)
Plan/Disclosure Statement (dkt. 61, 62)*: 3/17/20 deadline to file (NOT SERVE - except on the U.S. Trustee) any manually "redlined" revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined
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hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 4/21/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
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Adv#: 2:19-01211 Avery v. Wellington et al
2. Turnover of Bankruptcy Estate Property Under 11 U.S.C. Section 542(a); and 3. Authorization to Sell Estate Property Under 11 U.S.C. Section 363(h) and FRBP 7001(3) Free of Co-Owner Interest; 4. Bar Debtor and Amos Q. Wellington from Recovering Avoided Transfer Under Bankruptcy Code, Under 11 U.S.C. Section 522(g)(1)(A) and (B)
fr. 9/24/19, 11/12/19
Docket 1
Appearances required. This Court has reviewed the parties' joint status report (adv. dkt. 14) and the other filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR
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Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/11/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 6/30/20.
Continued status conference: 7/14/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Pro Se
Defendant(s):
Letitia Louise Wellington Pro Se
1:00 PM
Amos Q. Wellington Pro Se
Jonathan Wellington Pro Se
Michael Wellington Pro Se
Plaintiff(s):
Wesley H Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
1:00 PM
Docket 43
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised by their papers re this discovery dispute (dkt. 184, 185).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Letitia Louise Wellington Pro Se
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
1:00 PM
Docket 42
Tentative Ruling for 3/10/20:
Appearances required.
Current issues
UST's motion to dismiss case (dkt. 135), Debtors' response (dkt. 147) and Stark declaration in support (dkt. 150)
The UST should be prepared to address whether there are any remaining compliance deficiencies.
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see tentative rulings for 1/28/20 and 2/18/20 (reproduced below). In addition, Debtors have now filed amended versions of their Plan (dkt.154), Disclosure Statement (dkt.153), and the related Bankruptcy Schedules I&J (dkt.151) and Declaration of Postpetition Income and Expenses (dkt.152), all as ordered by this Court at the hearing on 2/18/20.
Continued status conference: 4/21/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Debtors' amended Disclosure Statement (dkt. 133) and amended Chapter 11 Plan of reorganization (dkt. 134)
The tentative ruling is to set a deadline of 2/28/20 for Debtors to file, BUT NOT SERVE on anyone except the United States Trustee and parties requesting a copy, a further amended Plan and amended Disclosure Statement to correct the issues discussed below. Debtors' counsel are cautioned that serving these draft documents as they have done (dkt.133, pp.83-85) is contrary to this Court's directions (see, e.g., Tentative Ruling for 1/28/20, part (2)(c), reproduced below), and is also wasteful of photocopying and postage expenses.
Erroneous/duplicative text
Debtor's Disclosure Statement (dkt.133, at PDF p.9:13-15) states that Debtors propose to pay the IRS over 60 months. But that is longer than permitted under 11 U.S.C. 1129(a)(9), and it is also inconsistent with their Exhibit A (dkt.133, at PDF pp.14&16) which proposes to pay the IRS over 48 months. Debtors have also classified the IRS as Class 3A, but priority tax debts are required to be unclassified. 11 U.S.C. 1123(a)(1).
These inconsistencies and errors illustrate the problems and confusion that can be caused by Debtors departing from the required forms and inserting their own text. The tentative ruling is to direct Debtors to delete all of the text inserted into the forms (e.g., dkt.133 at PDF pp.2, 3, 4, 7-12).
Disclosure Statement, Exhibits A and C (dkt.133 at PDF pp.14, 27-35 )
Again, Debtors are causing problems by departing from the required forms. Under an attachment to Exhibit C (dkt.133 at PDF p.30, line 3b), Debtors are directed to make adjustments to avoid double counting. But, for example, Debtors have double counted their $2,480.18 monthly mortgage
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payment on their rental property: both in their bankruptcy Schedule J (dkt.133 at PDF p.35) that they use to calculate disposable income and in their proposed Exhibit A showing distributions to creditors (dkt.133, Ex.A, at PDF p.14, Class 2A).
Again, Debtors must follow the forms: do not count that mortgage payment in calculating net income available to pay creditors (adjust the calculations in bankruptcy Schedule J to "back out" any debt payments or other double-counting), and list payments of debts only once, in Exhibit A.
Schedules I & J
Debtors have not complied with this Court's tentative ruling below (1/28/20) directing them to file corrected bankruptcy Schedules I & J that reflect income and expenses as of the petition date, not later dates. Why not? The tentative ruling is to set a deadline of 2/28/20 for Debtors to file corrected bankruptcy Schedules I & J.
Fee Application of A.O.E. Law & Associates ("AOE") (dkt. 126, 127), UST's opposition (dkt. 131), stipulation resolving UST's opposition (dkt. 136), Debtors' declaration (dkt. 139)
Applicant seeks an interim award of $6,591 in fees and $87.30 in expenses, for a total award of $6,678.30. The tentative ruling is to grant in part and deny in part the application as follows.
First, AOE states that it performed $10,150 in services for Debtors during the relevant fee period, but has applied a $3,559 retainer against those fees, so it only seeks approval of $6,591 in fees. Pursuant to 11 U.S.C.
330(a), all fees and expenses incurred in connection with AOE's representation of Debtors in this case must be approved by this Court. Therefore, the fee application should have requested approval of $10,150 in fees, but only sought payment of 6,591 in fees.
The tentative ruling is that, although the fee application is deficient and somewhat confusing on this issue, it includes sufficient disclosures that parties in interest have been notified of the totals that are really sought.
Therefore, this Court can approve the correct totals (with a caution to counsel to list the correct amounts next time).
Second, the order authorizing AOE's employment is effective as of 9/29/19 (dkt. 117), but AOE seeks $1,125 in fees for two time entries billed on 9/28/19 without addressing why such fees are warranted. The tentative ruling is to treat the fee application as including a request to amend the employment
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order to authorize earlier employment by a day or two, and direct Debtor to lodge a proposed amended employment order (again, with a caution to counsel to use the correct dates next time).
Third, pursuant to the stipulation resolving the UST's opposition, AOE has agreed to reduce its fees by an additional $645 (dkt. 136).
Based on the foregoing, the tentative ruling is to approve $9,505.00 in fees ($10,150.00 - $645.00 = $9,505.00) in fees and $87.30 in expenses, for a total award of $9,592.30, and direct Debtors to pay $6,033.30 ($9,592.30 -
$3,559.00 retainer = $6,033.30).
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 4/21/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required.
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Current issues
Debtors' Disclosure Statement (dkt. 123) and chapter 11 Plan of reorganization (dkt. 124)
The tentative ruling is to set a deadline of 2/4/20 for Debtors to file corrected bankruptcy Schedules I&J, a declaration of postpetition income and expenses, a corrected and "blacklined" Disclosure Statement, and a corrected and "blacklined" Plan, addressing the following issues:
Debtors' net income calculations are very confusing Debtors' net income calculations are confusing for three reasons.
First, bankruptcy Schedules I and J (filed both as part of the Plan documents and separately) are supposed to reflect income and expenses as of the petition date, not later dates. For later dates, Debtors should have used this Court's local form declaration of postpetition income and expenses. Using the wrong forms is confusing and misleading.
Second, it appears from this Court's notes of the hearing on 7/30/19 that Debtors moved out of their Locust Avenue duplex at some point, so they are now renting out both units (and meanwile they are themselves renting their living space for $1,000/mo.); but the Plan and Disclosure Statement do not make this clear. In addition, Debtors appear to list income from three renters - what space is the extra renter occupying, given that the property is a duplex not a triplex? Specifically, amended Schedule I, line 8a, lists
$1,600/mo. income (tenant #1), and line 8h and Ex.A list two more tenants paying a total of $3,445/mo. (tenants #2&3). Is this accurate?
Third, Debtors' mortgage obligation does not appear to be included either in their calculation of net income from their rental property (amended bankruptcy Schedule I, dkt.122, at PDF pp.29-30, line 8a & Ex.A) or in their expenses (Schedule J, line 20a, dkt.122, at PDF p.31). In one or another of those places, they should have included their mortgage expense of $2,480.18 for principal and interest (dkt.122, at PDF p.30).
That error is balanced out by the fact that the Plan proposes to pay that amount. But the correct way to show this would have been to file an accurate declaration of postpetition income and expenses and then, in the Disclosure Statement, adjust Debtors' net income by backing out whatever mortgage was included in the declaration of postpetition income and expenses. Exhibit C-1 to the Disclosure Statement has a line to make such adjustments.
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Date
The Plan in its current form is infeasible by $325 on the Effective
Debtors' cash flow statement (dkt.123, Ex.C) shows a negative
balance on the effective date: it gives the impression that the Plan is infeasible because Debtors would not be able to make the mandatory $325 payment to the UST on the effective date (see 11 USC 1129(a)(12)). Debtors are directed to address whether they will have sufficient cash on hand to make this payment.
The Plan does not comply with 11 USC 1129(a)(9)
Debtors propose to pay the IRS's claim over a period of 60 months, beginning on the proposed 4/1/20 effective date; but section 1129(a)(9) requires that the IRS's claim be paid in full within 5 years of the order for relief (i.e. 5 years from 4/10/19, or by 4/10/24).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Plan/Disclosure Statement*: The tentative ruling is to set a deadline of 2/4/20 for Debtors to file (BUT NOT SERVE) an amended Plan and Disclosure Statement correcting the foregoing issues, with manual "blacklining" showing all changes, which this Court will review prior to the continued status conference.
Continued status conference: 2/28/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 135
Please see the tentative ruling for the status conference (Calendar no. 4, 3/10/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
Ownership and Equity Protection Act; 3. Unfair Practices Act Under California Civil Code Section 17200; 4. Breach of Fiduciary Duty; and 5. Declaratory Relief fr. 9/24/19, 11/5/19, 1/28/20
Docket 1
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 11/5/19:
Appearances required. This Court has reviewed the parties' joint status report (dkt. 14) and the other filed documents and records in this adversary proceeding.
Current issues
Motion to dismiss ("MTD," adv. dkt. 5) filed by Karl S. Reinecker, an Accountancy Corporation ("KSRAC") and Marquee Funding Group, Inc. ("MFG") (collectively, "Defendants"), with respect to Debtor’s complaint (adv. dkt. 1) & request for judicial notice (adv. dkt. 6), debtor’s opposition & request for judicial notice (adv. dkt. 12, 13), defendants’ reply (adv. dkt. 15)
There is no tentative ruling.
Standard issues
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
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Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a)
venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation n/a
Deadlines
This adversary proceeding has been pending since 7/22/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 12/17/19 at 2:00 p.m. Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial
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Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/5/19:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
DOES 1-10 Pro Se
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
1:00 PM
Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
Docket 20
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the adversary status conference (calendar no. 6, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the adversary status conference (calendar no. 10, 1/28/20 at 1:00 p.m.).
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
DOES 1-10 Pro Se
Movant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
1:00 PM
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20
Docket 1
Tentative Ruling for 3/10/20:
Appearances are not required on 3/10/20.
Current issues
Debtor's Amended Plan (dkt. 532) and Amended Disclosure Statement (dkt. 533)
The tentative ruling is to approve the disclosure statement on an interim basis and direct Debtor no later than 3/12/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of the voting package and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for 4/21/20 at 1:00 p.m.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: See above
Continued status conference: 3/31/20 at 1:00 pm. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 49
Revised Tentative Ruling for 3/10/20:
Appearances required.
Current issues
Debtor's amendment of bankruptcy petition to elect Subchapter V (dkt. 128)
On 3/2/20, Debtor amended her petition to elect Subchapter V. The parties should be prepared to discuss the effect of that amendment, including any appropriate dates and deadlines for such matters as the appointment of a Subchapter V trustee, the filing of an amended plan, and any other applicable procedures that this Court may need to set at this time.
No discernable progress since last hearing
The docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case. Given the short time since the last hearing, the tentative ruling is that this Court will not take any action based on that lack of discernable progress, but to remind Debtor to be cognizant of the warnings that this Court set forth on the record at the last hearing.
No corrected MOR
Debtor has not corrected the monthly operating report, which was not filed on the required form. See tentative ruling for 3/3/20 (reproduced below), item "(1)" "(b)". Why not?
No statement reflecting apparent increase in income?
Despite two reminders, Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Rulings for 3/10/20 and 2/18/20 (reproduced below). Why not?
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Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94), Debtor's reply (dkt. 134), interim order (dkt.113)
Although this Court has concerns about whether Debtor's financial disclosures are accurate and complete (as set forth in various portions of this tentative ruling and prior tentative rulings), the proposed use of funds in the budget motion appears to be appopriate. Accordingly, the tentative ruling is to grant the motion on a final basis, subject to the following.
First, any approval is subject possible reconsideration once Debtor finally files her statement of postpetition income and expenses, and files the other documents directed by this Court (see dkt.133), or as other facts may come to light. Second, the budget must be adjusted to accommodate the request of East West Bank for Debtor to increase her proposed monthly mortgage payment to $5,643.86, which Debtor has agreed to do (dkt. 134). Third, any approval is subject to the parties' rights to seek further relief, including approval of any stipulation for adequate protection.
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on a final basis, on the same terms as stated in the order (dkt.114) granting the motion on an interim basis, and subject to the same caveats and conditions as set forth above regarding the budget motion.
Application to employ The Orantes Law Firm (the "Firm") (dkt. 72); statement of disinterestedness (dkt. 73); amended statement of disinterestedness (dkt. 82); Dec re non-opp (dkt. 98); order setting matter for hearing (dkt. 101)
The tentative ruling is to grant the application in part and deny it in part as follows.
Debtor seeks to employ the Firm pursuant to 11 U.S.C. 327, with compensation pursuant to 11 U.S.C. 330 at the following hourly rates for the Firm's attorneys: Giovanni Orantes: $695 and Luis A. Solorzano: $350 (dkt. 72, p.16). In determining the reasonableness of the proposed billing rates, 11 USC 330(a)(3)(B), (E) and (F) require this Court to consider, among other things, proposed counsel's hourly rates, any board certification or other demonstrated skill and experience in the bankruptcy field, and "the customary compensation charged by comparably skilled practitioners "
Based on a review of rates charged by other bankruptcy professionals
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practicing before this Court as well as this Court's familiarity with proposed counsel's skills and performance in pending and past cases before it, the tentative ruling is to approve the Firm's employment, subject to Judge Bason's standard employment terms (available at www.cacb.uscourts.gov), but reduce the hourly rates that the Firm may charge to the following maximum dollar amounts, without in any way limiting the requirement that any rates charged and time spent still must be fully justified: Giovanni Orantes:
$475/hour and Luis A. Solorzano: $250/hour.
In addition, the tentative ruling is that any waiver of conflicts of interest is ineffective as against the bankruptcy estate. (A "debtor in possession," acting as a trustee for the benefit of creditors, cannot waive conflicts on behalf of those creditors.)
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The tentative ruling is to continue this matter again, to be concurrent with the continued status conference (see below), so as to be able to assess
whether Debtor has adequately prosecuted this case, including selling or refinancing one or more properties (if that is realistic) or otherwise demonstrating progress that has been sorely lacking to date, and (ii) Debtor's papers regarding her non-debtor husband's finances, which are due 3/18/20. See Order (dkt.133).
Meanwhile, the parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare
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an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
Debtor's Bankruptcy Schedules I and J provide very little information
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about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
1:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby
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adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id.,
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p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
Docket 72
Please see the tentative ruling for the status conference (Calendar No. 9, 3/10/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
fr. 02/18/20
Docket 86
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar No. 9, 3/10/20 at 1:00 p.m.).
Revised Tentative Ruling for 2/18/20:
Grant the motion (docket no. 86, 90) on an interim basis, subject to the conditions set forth below, with a final hearing on 3/31/20 at 1:00 p.m., and a deadline of 2/25/20 for the movant to file and serve a notice of the final hearing. Appearances are not required on 2/18/20.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following
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protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any
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recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
1:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
fr. 02/18/20
Docket 85
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar No. 9, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (Calendar No. 17, 2/18/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
1:00 PM
MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition (dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they
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wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
The tentative ruling is to overrule Debtor's evidentiary objections (dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
Although valuation is relevant, the tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
Movant asserts that Debtor has shown bad faith, and that this is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had
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no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on 3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the
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automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and
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alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
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Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 133
Please see the tentative ruling for the status conference (calendar no. 5, 3/10/20 at 2:00 p.m.)
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
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Docket 136
Please see the tentative ruling for the status conference (calendar no. 5, 3/10/20 at 2:00 p.m.)
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
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7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19
Docket 5
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
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03/12/19, 3/26/19; 08/06/19, 11/5/19, 12/10/19
Docket 0
Tentative Ruling for 3/10/20:
Continue this status conference to 6/30/20 at 2:00 p.m., with a brief status report due 6/23/20 based on Debtor's status report (dkt. 1532). Appearances are not required on 3/10/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
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Docket 37
Revised Tentative Ruling for 3/10/20:
Appearances required. Debtor should be prepared to addressed the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 43). In addition, Debtor is directed to explain the budgets attached to the motion as Exhibits "1", "2", and "3." This Court does not understand those budgets.
Subject to resolution of the above referenced issues, and any opposition at the hearing, and further subject to Debtor's stipulation with the United States on behalf of the IRS (dkt.62), the tentative ruling is to grant the motion (docket no. 37) on an interim basis, subject to the conditions set forth below, with a final hearing on 4/7/20 at 2:00 p.m., and a deadline of 3/13/20 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically
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provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable
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but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Revised Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
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Docket 38
Revised Tentative Ruling for 3/10/20:
Appearances required. Debtor should be prepared to addressed the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 44). In addition, Debtor is directed to explain the budgets attached to the motion as Exhibits "1" and "2." This Court does not understand those budgets.
Subject to resolution of the above referenced issues, and any opposition at the hearing, and further subject to Debtor's stipulation with the United States on behalf of the IRS (dkt.62), the tentative ruling is to grant the motion (docket no. 38) on an interim basis, subject to the conditions set forth below, with a final hearing on 4/7/20 at 2:00 p.m., and a deadline of 3/13/20 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically
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provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable
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but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
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Docket 1
Revised Tentative Ruling for 3/10/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Debtor's motions to use cash collateral (dkt. 37, 38)
Grant on an interim basis, subject to certain conditions, as set forth in calendars no. 7 and 8 (3/10/20 at 2:00 p.m.).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 3/3/10:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
This Court has reviewed both of Debtor's status reports (dkt. 23, 26) and the other filed papers in this case. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/10/20 at 2:00 p.m., to be concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
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Docket 23
Subject to (i) resolution of the issues raised in this Court's order shortening time (dkt. 21) and below, and (ii) any persuasive opposition at the hearing, and (iii) the additional conditions set forth below, the tentative ruling is to grant the motion (dkt. 23) on an interim basis, with a final hearing on 3/31/20 at 1:00 p.m., and a deadline of 3/18/20 for the movant to file and serve a notice of the final hearing.
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service
This Court's order shortening time (the "OST," dkt. 21) directed Debtor to serve a copy of the OST via expedited means on all secured creditors, the Subchapter V trustee, and certain other persons, so that the OST was received by them no later than 3/14/20 at noon. All other parties had to be served via U.S. mail no later than 3/13/20. Id., p.2.
Was that done? Although the OST directed Debtor to file a proof of service ("POS") no later than 3/13/20 at 5:00 p.m., no such POS has been filed. (There is proof of service of the cash collateral motion itself, but only via
U.S. mail on 3/13/20, not via expedited means. Nor is there any proof of service of the OST.)
If Debtor's counsel makes an adequate offer of proof at the hearing regarding service, the tentative ruling is to set a deadline of 3/19/20 for Debtor's counsel to file a written proof of service confirming that offer of proof.
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Budget starts in April - what about March?
The Budget omits March. See dkt.23, Ex.4, at PDF p.52. Debtor sought, and obtained, the OST on the basis of an allegedly urgent need for approval of this Court before paying anything. How can Debtor obtain any expedited relief unless this Court grants authorization for March expenditures?
Proposed Budget's payment of "principal," or interest?
The proposed Budget attached to Debtor's motion (dkt.23, Ex.4, at PDF p.51-52) includes "Long-term Principal payments" (sic, emphasis added) of $4,000.00/mo. An endnote to the proposed Budget (id., n.3) states "Key Assumptions: ... 3. Board of Trustees [sic] repayment is $4,000." (Emphasis added.)
First, any repayment of principal is prohibited. Second, Debtor does not explain what the "Board of Trustees" is, or why Debtor proposes to pay it anything.
Perhaps the answer is in the Motion and the declaration of Debtor's principal, Sam Vazquez (dkt.23, p.4:12-17, and p.11:1-8). They state that Debtor proposes to pay monthly "interest" to its secured creditors as adequate protection (11 U.S.C. 361, 363(c)&(e)), which is usually permissible. Debtor calculates that, at the proposed rate of 5% per annum, the payments will be as follows: $1,699.00/mo. to Forward Financing, $420.00/mo. to Pearl Beta Funding, and $1,152.00/mo. to On Deck Capital, Inc., for a total of
$3,271.00/mo. Id.
Is this "adequate protection" what Debtor proposes to pay, rather than any repayment of "principal"? If so, the tentative ruling is to approve such interest-only payments, based on the record presented and subject to the conditions in this tentative ruling, as adequate protection payments.
"Other" income
The proposed Budget includes "other" income. Dkt.23, Ex.4, at PDF
p.51. What is that "other" income?
Debtor's status report (dkt.17, p.2) states that Debtor's principal, Mr.
Vazquez, makes monthly contributions to Debtor. Is that the "other" income? If so, why was this not explained in the motion? In addition, what evidence is there that Mr. Vazquez is not only able to make such contributions but will
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commit to do so, and that his commitment is realistic (so that this Court has some foundation on which to determine that all interests in Debtor's cash collateral will be adequately protected?
Receivables collection
The proposed Budget includes "Receivables Collections" of $6,000 per month for the first two months, followed by $24,000 per month for the third month. What is the basis for these projections? Are they in line with historical experience? On what basis can this Court conclude that quadrupling the receivables collection in the third month of this case is realistic?
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain
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current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Grant of, and limitation on, postpetition liens
The tentative ruling is to grant postpetition liens to the secured creditor(s) named in the motion papers by granting replacement liens, but such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that
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the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
1:30 PM
Andrew W. Levin (TR) Pro Se
1:30 PM
Docket 1
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's emergency cash collateral (dkt. 23)
Grant on an interim basis, subject to (i) resolution of certain preliminary issues and (ii) certain conditions, as set forth in calendar no 1, 3/17/20 at 1:30 p.m.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., status report due 3/17/20 per order setting initial status conference (dkt. 12)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
2:00 PM
Docket 31
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's status report (dkt. 103), and has no issues to raise sua sponte. The parties are directed to address any issues they have.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/24/20 at 2:00 p.m., with no status report required, per this Court's scheduling order (dkt. 87).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/7/20:
Appearances required by counsel for the debtor and by the debtor's principal.
Current issues
This Court has reviewed Debtor's status report (dkt.39). There is no tentative ruling but parties in interest may address scheduling and procedures for Debtor's anticipated DIP financing motion, 363(f) sale motion, etc.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 2/4/20 at 1:00 p.m., brief status report due 1/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 96
Please see the tentative ruling for the status conference (calendar no. 3, 3/24/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
2) Bidding procedures; and 3) Bidding qualification requirements
Docket 77
Please see the tentative ruling for the status conference (calendar no. 3, 3/24/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 31
Tentative Ruling for 3/24/20:
Appearances required by any counsel who wish to be heard, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
No witnesses required
No witnesses need appear (either by telephone or in person), because no evidentiary issues are presented at this time.
Objection to the Sale Motion
The tentative ruling is to overrule the objection objection (dkt.104) filed by the Estate of Maynard Poynter, Patricia Poynter, Leah Poynter, Adam Poynter, Sean pointer and Melissa O’Donnel. The parties should be prepared to address the issues raised in that objection and in Debtor's reply papers (dkt.110-12).
Service of the Sale Motion on certain other persons
Debtor’s proof of service ("POS," dkt. 101) appears insufficient. The tentative ruling is that the hearing will have to be continued to provide notice to persons who have not received adequate notices.
For example, Debtor proposes to sell/assign to Mariculture a license issued by the U.S. Army Corps of Engineers (the "Corps") (see dkt. 111,
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Ex.1(ii) (APA), Schedules 1.1 & 1.3, at PDF pp.35 & 41). But there are two problems with any attempted service on the Corps:
No service on the Corps itself. The Corps is listed on the proof of service with its mailing address crossed out and the notation "1/2/20 Unable to Forward" (dkt. 101, p.5, middle of right column); and
No service on U.S. Attorney and Attorney General. The Corps appears to be an "agency of the United States" so a copy of the motion papers should have been "addressed to the civil process clerk at the office of the United States Attorney" for this district (whose address is available on this Court’s website, www.cacb.uscourts.gov under "Government Units’ Mailing Address," section 2.4(a)) and to the "Attorney General of the United States at Washington, District of Columbia" (same, section 2.4(b)). Rule 7004(b) (4)&(5) (emphasis added) (incorporated by Rule 9014(b)).
There appear to be similar problems with service on other entities. For example, although Debtor’s sale materials (dkt. 100, at PDF p.16) identify a "National Oceanic and Atmospheric Administration (NOAA) Aquaculture Permit dated February 28, 2017" as one of the assets to be sold, and Schedules 1.1 and 1.3 of the APA (dkt. 111 at PDF pp. 35 & 41) also reference "permits and consents and conditions" imposed by NOAA, the POS does not appear to include NOAA or its representative. Similar issues appear to apply regarding the California Coastal Commission, Titan Steel Structures, and other parties to various executory contracts. See dkt. 111, Ex. 1(ii) (APA), Schedule 1.3, at PDF p. 41, and see Rule 7004(b)(3) (service on organizations) and (b)(6) (service on States, or governmental organizations thereof).
The tentative ruling is that it is appropriate to shorten time under Rule 9006(c) because of the exigent circumstances of Debtor having no funds to continue operating beyond a very short period of time. See dkt. 47, p.7:25; dkt. 79; dkt. 60; dkt. 93; dkt.109. The evidence before this Court is that Debtor’s assets will lose substantial value if not all value if Debtor is unable to pay for care of its mussels and other essential tasks. See dkt. 96,
pp.22:13-24:18; dkt. 99.
Based on the foregoing, the tentative ruling is to set the following deadlines: March 25, 2020 for Debtor to serve via overnight mail or personal delivery any entities whose interests are directly affected by the Sale Motion and who have not already been served in compliance with Rule 7004 (or who have waived such service), and to file a proof of service; April 3, 2020 for
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those entities to file and serve any response; and April 6, 2020 at noon for any reply papers. A continued hearing is tentatively set for April 7, 2020 at 2:00 p.m.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/7/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's status report (dkt. 103), and has no issues to raise sua sponte. The parties are directed to address any issues they have.
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Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/24/20 at 2:00 p.m., with no status report required, per this Court's scheduling order (dkt. 87).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/7/20:
Appearances required by counsel for the debtor and by the debtor's principal.
Current issues
This Court has reviewed Debtor's status report (dkt.39). There is no tentative ruling but parties in interest may address scheduling and procedures for Debtor's anticipated DIP financing motion, 363(f) sale motion, etc.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
2:00 PM
Continued status conference: 2/4/20 at 1:00 p.m., brief status report due 1/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
8:30 AM
Docket 59
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor.
Pursuant to Judge Bason's COVID19 Procedures telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to
use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 62).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria C Aguiar Represented By
Gaurav Datta - DISBARRED - Rebecca Tomilowitz
8:30 AM
Movant(s):
Maria C Aguiar Represented By
Gaurav Datta - DISBARRED - Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 47
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. Pursuant to Judge Bason's COVID19 Procedures telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Latoni Michelle Robinson Represented By Nicholas M Wajda
Movant(s):
Latoni Michelle Robinson Represented By
8:30 AM
Trustee(s):
Nicholas M Wajda
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 53
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
The parties should be prepared to address the issues raised in this Court's Order Setting Motion To Dismiss For Hearing (the "Order," dkt. 56). As set forth in the Order, if there is no appearance by or on behalf of Debtor, the tentative ruling is to grant the Trustee's motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sagrario Medina Represented By William W Tiffany
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
Docket 62
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis
Background
On 9/16/19 creditor Ajax Mortgage Loan Trust 2019-A etc. ("Ajax") filed its proof of claim (Claim No. 17-1) that incorrectly stated that Debtor's mortgage has a fixed interest rate, when in fact the interest rate varies every month and, confusingly, the monthly payments vary every year. On 10/7/19, 11/18/19, and 12/16/19 Ajax filed notices of payment changes. On 3/12/20 Ajax filed an amended proof of claim (Claim No. 17-2).
On 1/21/20 Debtor filed a motion (dkt.62) objecting to Ajax's notices of payment change, and requesting that Debtors be entitled to continue paying
$1,561.02/mo. instead of the increased payment of $1,685.91/mo. that was to commence 2/1/20 according to Ajax's second notice of payment change. On 3/12/20 Ajax filed its response (dkt.72), which admitted certain errors but (a) pointed out that Debtors were well aware that their loan had a variable interest rate based on the changes in their prior chapter 13 case, their own loan modification request, and the history of this case, and (b) argued that Debtors had not been prejudiced, but (c) stating that Ajax "has applied the first two payments at the lower P&I amount listed in the POC." Dkt.72, p.11:11-14. On 3/19/20 Debtors filed their reply arguing that Ajax still has not
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provided a transparent explanation of all of its calculations; that payments should remain at $1,561.02/mo. and that "Debtors should be entitled to a credit against future payments for any mortgage overpayment that they have paid in excess of said amount until such time as Ajax [or its servicer] completes a thorough and transparent principal and interest mortgage payment analysis." Dkt.74, p.5:22-26 (emphasis in original).
Governing Rule
Under Rule 3002.1(b) (Fed. R. Bankr. P.), Ajax was required to provide "a notice of any change in the payment amount" no later than 21 days "before payment in the new amount is due"; Debtor was entitled to object to any such payment change; and, "[i]f no motion is filed by the day before the new amount is due, the charge goes into effect, unless the court orders otherwise." (Emphasis added.) Rule 3002.1(b)(2). Under Rule 3002.1(f),
Falure to Notify. If [Ajax] fails to provide any information as required by subdivision (b) [of Rule 3002.1], the court may, after notice and a hearing, take either or both of the following actions:
preclude [Ajax] from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or
award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure. [Rule 3002.1(f) (Fed.
R. Bankr. P.) (emphasis added)]
Under 11 U.S.C. 102(3), "'includes' and 'including' are not limiting.
Rule 9001 (Fed. R. Bankr. P.) applies section 102 to the Rules.
Application of Rule 3002.1 to the facts
This Court has considerable discretion in fashioning appropriate relief based on Ajax's incorrect and confusing notices of payment change. This Court is also concerned that Ajax has not provided enough information and transparency, and on the other hand this Court is not persuaded on the present record that there has been any substantial prejudice to Debtors, although this Court recognizes that it can be difficult for any debtors in bankruptcy to catch up all at once on any shortfalls in mortgage payments, which is one reason why adequate protection orders typically provide several months to cure postpetition arrears. In addition, this Court is concerned that
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both parties' attorney fees may well exceed the dollar amounts in controversy.
Based on all of the foregoing, the tentative ruling is as follows: Ajax, no later than 4/30/20, must file and serve declaration(s)
establishing at each relevant time (i) the amount of the index interest rate on which the variable interest rate is based, (ii) its calculation of the variable interest rates, and the dollar amounts of principal and interest, (iii) the data on which all escrow amounts are based (e.g., copies of documents showing real estate tax amounts and insurance amounts), and (iv) calculations of escrow account balances and monthly payment amounts.
Debtor's response is due 5/14/20.
A continued hearing will be held on 5/28/20 at 8:30 a.m.
Meanwhile, the parties will be ordered to mandatory mediation. Their deadline to lodge proposed mediation order(s) is 4/10/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Allen Jordan Represented By
Richard Mark Garber
Joint Debtor(s):
Audrey Carolyn Jordan Represented By
Richard Mark Garber
Movant(s):
George Allen Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
8:30 AM
Audrey Carolyn Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
- NONE LISTED -
Debtor(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Movant(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 33
Continue to 4/30/20 at 8:30 a.m. to address the following issues. Appearances are not required on 3/26/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor has not articulated a sufficient basis to disallow the claim Debtor's sole basis for disallowance of Proof of Claim 22-1 (the
"Claim") filed by HSBC Bank USA, N.A. is that the Claim is not supported by adequate documentation or an explanation as to why such documentation could not be attached (dkt. 33, p.2:12-16).
It is not enough to say that there is insufficient writing for prima facie validity under Rule 3001(f) (Fed. R. Bankr. P.). As stated by this Court in its Memorandum Decision Regarding Debtor's Claim Objections in In re Orozco, availbale on the court's website:
It is true that under Rule 3001(f) a proof of claim must be "executed and filed in accordance with these rules" in order to automatically "constitute prima facie evidence of the validity and amount of the claim." But a rule cannot supersede a statute, and as held by the Bankruptcy Appellate Panel for the Ninth Circuit ("BAP"), an objecting party must do more than simply point to a lack of
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compliance with Rule 3001 in order to obtain an order disallowing a claim: the objecting party must establish an actual basis to contest the liability or amount of the claim. See In re Campbell, 336 B.R.
430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424 (9th Cir. BAP
2005). See also Travelers Cas. & Sur. Co. of Am. V. Pac. Gas & Elec. Co., 549 U.S. 443, 449 (2007) ("the court 'shall allow' the claim 'except to the extent that' the claim implicates any of the nine exceptions enumerated in § 502(b)") (quoting the statute). [2:13- bk-15745-NB, dkt. 134 at p.5:8-19]
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
Debtor must supplement the claim objection or withdraw it
No later than 7 days after the date of this hearing Debtor must file
either:
a supplemental declaration that both (i) identifies a basis under
section 502(b) for disallowance of the Claim and (ii) explains why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a
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cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Movant(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
- NONE LISTED -
Debtor(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Movant(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 54
Grant, based on Debtor's statute of limitations argument and this Court's review of the proof of claim.
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: This Court will prepare the order after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
8:30 AM
Movant(s):
Eric L Creer Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 56
Grant, based on Debtor's statute of limitations argument and this Court's review of the proof of claim.
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: This Court will prepare the order after the hearing date.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
8:30 AM
Movant(s):
Eric L Creer Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 58
Deny as moot. The Franchise Tax Board has filed its amended proof of claim (Claim No. 3-3) in the amount of $0. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: This Court will prepare the order after the hearing date. See
LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
8:30 AM
Movant(s):
Eric L Creer Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 60
Deny, with leave to amend. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: This Court will prepare the order.
Key documents reviewed (in addition to motion papers): Proof of Claim 4
Reasons for denial:
Debtor has objected to this claim before, and this Court previously overruled that objection on similar grounds. See Order (dkt.42).
Burdens of proof
The Proof of Claim contains the documentation required by Rule 3001(c) (Fed. R Bankr. P.) and therefore it is prima facie evidence of the validity and amount of the claim. Fed. R. Bankr. P. 3001(f). Alternatively, even if the claim were not entitled to prima facie validity (which it is), the burden is on Debtor to come forward with evidence and legal arguments sufficient to disallow the claim. 11 U.S.C. 502(a). See In re Campbell, 336
B.R. 430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424 (9th Cir. BAP 2005). (This Court recognizes that Rule 3001(c) has been amended, after Campbell and Heath, principally to specify what writings must be attached when a
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revolving credit agreement is involved, but for other types of claims the language of the rule remains essentially the same.)
Claim objections without merit can be overruled, and should be, even absent a response by the claimant
It is often more costly in money and time for a creditor to respond than a claim is expected to be worth, because even if the claim is allowed it will only be paid in what are sometimes called "tiny bankruptcy dollars" (i.e., pennies on the dollar). In addition, any litigation will increase the administrative expense of any counsel for the debtor, thereby further reducing recoveries even if the claimant prevails. Recognizing these disincentives to fight claim objections, and also recognizing that claim objections that are not well taken should not be sustained, bankruptcy courts often overrule claim objections even without any opposition by the claimant. See, e.g., Heath, 331
B.R. 424, 427 (affirming bankruptcy court's allowance of claims, despite most creditors' lack of participation before that court or on appeal, and noting bankruptcy court's statement that "[i]t's more trouble [for most Creditors] to respond than the claim is worth"). That approach is consistent with Rule 55(b)(2)(C) and (D) (Fed. R. Civ. P., incorporated by Rules 7055, 9001(7) and 9014(c), Fed. R. Bankr. P.), which give the trial court discretion to conduct a "prove up" hearing any deny recoveries even when the defendant/respondent defaults.
The claim objection was not properly served
The proof of claim statates that the address where notices should be sent (pursuant to Rule 2002(g), Fed. R. Bankr. P.) is:
Resurgent Capital Services PO Box 10587
Greenville, SC 29603-0587 [Claim No. 4-1, line 3]
Debtor's proof of service (the "POS," dkt.60, last 2 pages) lists that PO Box but is addressed to a different entity - the holder of the claim instead of the servicer. That could have caused the mail to be mis-directed, so this Court cannot presume that this error is harmless.
(In addition, this Court notes that the POS is not properly filled out.
Given that Debtor is not represented by an attorney, this Court is not resting its tentative ruling on this basis; but for future reference this Court notes the following problems with the POS. First, the POS leaves blank the date of service - although service must have been before the POS was signed and filed. Second, the POS checks the box for service via overnight service or
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other expedited means, but the attached list of addresses does not specify which means, and this Court suspects that in fact the service was via U.S. mail.)
Debtor’s objection is not persuasive
Debtor challenges the enforeability of the state court default judgment. But Debtor has not provided any evidence that he does not owe this debt or asserted that he timely appealed the state court judgment and that appeal was still pending as of the petition date. In fact, Debtor states that he has only recently attempted to set aside the default judgment (dkt. 60, p. 4).
Debtor appears to assert that the claim is time-barred. But judgments typically are enforceable for many years, and Debtor has not provided evidence that this judgment is time barred.
Debtor challenges the standing of claimant LVNV Funding LLC ("LVNV") to enforce that judgment, and the standing of Resurgent Capital Services to assert a claim on behalf of LVNV in this case. But the proof of claim (Claim No. 4-1) includes evidence of standing.
For the foregoing reasons, Debtor has failed to meet his burden to establish a basis to disallow the claim.
Debtor's request for a continuance is denied
In the alternative, Debtor requests that this Court continue this hearing until some unspecified time that (a) the state court can locate the case file and (b) debtor can move to set aside the default judgment. The tentative ruling is that this Court is not persauded to continue this matter indefinitely. If Debtor succeeds in his efforts to set aside the default judgment, he is free to re-file an objection to Proof of Claim 4.
Note: This Court also notes that Debtor has again failed to include a copy of the proof of claim as an exhibit to his objection, or use the mandatory local form of claim objection. In any future objections, Debtor must comply with all applicable rules and procedures regarding claim objections.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
8:30 AM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
Movant(s):
Eric L Creer Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Deutsche Bank National Trust
Docket 61
Deny Debtor's objection to Proof of Claim 5. Appearances required, to address whether the denial should be with or without leave to amend - i.e., should Debtor have another opportunity (in addition to his prior claim objections, his current claim objections, and his opportunities to file reply papers) to provide legal authority and admissible evidence for his assertions, such as his assertion that "[i]n order to service loans in the State of California a business entity must register with the California State Department of Business Oversight (DBO)" (dkt.61, p.2:9-10)?
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Claimant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Proof of Claim 5-1, Order denying prior objection to proof of claim no. 5-1 (dkt. 51, "Order Denying Claim Objection"), current claim objection (dkt. 61), Claimant's response (dkt. 64, the "Opposition"), no reply is on file.
Reasons for denial:
Burdens of proof
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The Proof of Claim contains the documentation required by Rule
3001(c) (Fed. R Bankr. P.) and therefore it is prima facie evidence of the validity and amount of the claim. Fed. R. Bankr. P. 3001(f). Alternatively, even if the claim were not entitled to prima facie validity (which it is), the burden is on Debtor to come forward with evidence and legal arguments sufficient to disallow the claim. 11 U.S.C. 502(a). See In re Campbell, 336
B.R. 430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424 (9th Cir. BAP 2005). (This Court recognizes that Rule 3001(c) has been amended, after Campbell and Heath, principally to specify what writings must be attached when a revolving credit agreement is involved, but for other types of claims the language of the rule remains essentially the same.)
Debtor’s objection is not persuasive
As noted above, Debtor asserts that claimant is required to be, and is not, registered with the DBO, but Debtor has not cited any legal authority for that assertion. Claimant responds on that basis (dkt.64, p.4:15-16) and Debtor has not filed any reply. Accordingly, this ground is unpersuasive.
Debtor asserts that the proof of claim contains a number of "suspicious entries that may or may not be valid" (dkt. 61, p.2:23-24), but he does not provide any explanation as to why those charges are "suspicious" or identify any legal basis to disallow those charges. Nor does Debtor provide any evidence that he does not owe this debt. Similarly, Debtor asserts that Claimant and it's servicer lack standing to enforce the claim, but does not cite any authority in support of these arguments.
For these reasons, Debtor has not met his burden to establish a basis to disallow the claim.
Whether the claim objection should be denied with or without leave to amend
This is Debtor's second objection to Proof of Claim 5-1 ("Claim 5"). In connection with his first objection to Claim 5, this Court issued a detailed tentative ruling explaining why Debtor's arguments were not meritorious (dkt. 51). Now Debtor has again failed to identify a legitimate basis to disallow Claim 5, in whole or in part. Meanwhile, Claimant has had to incur significant costs responding to his claim objections. Therefore, the tentative ruling is that Debtor has waived and forfeited any arguments in support of disallowing Claim 5 and this Court's denial will be without leave to amend.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Eric L Creer Pro Se
Movant(s):
Eric L Creer Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 128
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Mr. Bruce Boice, Esq. should be prepared to address the issues raised in this Court's order to show cause (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rene Medina Represented By
Bruce A Boice
Joint Debtor(s):
Maria Medina Represented By Bruce A Boice
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 39
- NONE LISTED -
Debtor(s):
Kenneth Alan Lindahl Represented By Carl Shaff II
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments fr. 2/27/20
Docket 51
Tentative Ruling for 3/26/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date at Debtor's request to allow time for him to address the Chapter 13 Trustee's concerns (dkt. 52). There is no tentative ruling, but the parties should be prepared to update this Court on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Appearances required. There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 52).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kip Scott Rolfe Represented By Thomas B Ure
Movant(s):
Kip Scott Rolfe Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 2/27/20
Docket 22
Tentative Ruling for 3/26/20:
Grant the claim objection and disallow Proof of Claim 5 in full. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
This Court expressly finds that Counsel has provided a cost/benefit analysis (dkt. 29) that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections, so any limitation on fees in the prior tentative ruling on this matter is hereby vacated.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
8:30 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Continue to 3/26/20 at 8:30 a.m. to address the following issues. Appearances are not required on 2/27/20.
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim
8:30 AM
objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlys Franklin Bays Represented By William G Cort
Movant(s):
Carlys Franklin Bays Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 2/27/20
Docket 23
Tentative Ruling for 3/26/20:
Grant the claim objection and disallow Proof of Claim 3 in full. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
This Court expressly finds that Counsel has provided a cost/benefit analysis (dkt. 29) that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections, so any limitation on fees in the prior tentative ruling on this matter is hereby vacated.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
8:30 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Continue to 3/26/20 at 8:30 a.m. to address the following issues. Appearances are not required on 2/27/20.
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim
8:30 AM
objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlys Franklin Bays Represented By William G Cort
Movant(s):
Carlys Franklin Bays Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Debtor(s):
June K Moore Pro Se
Movant(s):
United States Trustee (LA) Represented By Ron Maroko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20
Docket 23
Tentative Ruling for 3/26/20:
Deny, because the tentative ruling for 2/23/20, which was not contested and therefore was adopted as this Court's actual ruling, set a deadline of 3/12/20 for Debtor to address the issues in the opposition (dkt. 32), including an explanation of how the amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19, even though it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appearances are not required. If you wish to contest the tentative ruling you must arrange for a telephonic appearance. Pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 1/23/20:
Continue to 3/26/20 at 8:30 a.m. with a deadline of 3/12/20 for the parties to file supplemental papers addressing the issues set forth in the filed objection (dkt.32). Appearances are not required on 1/23/20.
Reasons:
Service
The amended motion papers were not served until 1/7/20 (10 days before the hearing) (see dkt. 26), which is too little time before the hearing.
Evidence of senior debt
Debtor's amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19 but it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appraisal; date of valuation
The junior lienholder has requested (dkt. 32) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Blanca Estela Rubalcava Represented By Lionel E Giron
Movant(s):
Blanca Estela Rubalcava Represented By Lionel E Giron Lionel E Giron Lionel E Giron Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Debtor(s):
Kerri L Garrison Represented By Summer M Shaw
Movant(s):
Kerri L Garrison Represented By Summer M Shaw Summer M Shaw
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 49
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling. Debtor should be prepared to address the issues raised in this Court's Order Setting Hearing on Debtor's Motion for Voluntary Dismissal of Chapter 13 Case (dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria De Los Angeles Rea Represented By A Mina Tran
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
9:30 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 3/26/20 (same as for 3/10/20, except telephonic procedures):
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate regarding the issues addressed in the tentative ruling for 2/18/20 (reproduced below). Has this matter been resolved?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This matter was continued to this date (a) to allow time for Debtor to
9:30 AM
substitute in new counsel and (b) for Debtor to determine whether she can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments. The tentative ruling is to set a deadline of 4/6/20 for Debtor to file and serve a motion seeking authorization for one of those methods of curing her defaults, to be self- calendared for hearing no later than 4/30/20 at 8:30 a.m. Meanwhile, the tentative ruling is to continue this hearing to 4/7/20 at 10:00 a.m.
Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that Debtor as the owner of the property is competent to provide an opinion as to its value, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
9:30 AM
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By William D Bowen
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer
9:30 AM
Trustee(s):
Reilly D Wilkinson
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 42
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Reyes Represented By
William G Cort
10:00 AM
Movant(s):
Wilmington Savings Fund Society, Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 49
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ryan Gregory Ortiz Represented By Charles J Brash
10:00 AM
Joint Debtor(s):
Debra Diane Ortiz Represented By Charles J Brash
Movant(s):
Ditech Financial LLC Represented By Daniel K Fujimoto Julian T Cotton Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST
vs DEBTOR
Docket 52
Debtor(s):
Elfego Martinez Dominguez Represented By Suzette Douglas
Joint Debtor(s):
Floriberta Martinez Cruz Represented By Suzette Douglas
Movant(s):
Deutsche Bank National Trust Represented By Robert P Zahradka Megan E Lees
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 31
Debtor(s):
Maria Annette Brooks Represented By
D Justin Harelik
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Sean C Ferry Erin Elam Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK TRUST NA
vs DEBTOR
Docket 37
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ronny Heredia Represented By William G Cort
10:00 AM
Movant(s):
US Bank Trust NA as Trustee of Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST NATIONAL ASSOCIATION vs
DEBTOR
Docket 64
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re
10:00 AM
Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C.
10:00 AM
109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Thomas Virden Tolley Represented By Matthew D. Resnik
Movant(s):
U.S. Bank Trust National Represented By Joseph C Delmotte
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 45
Tentative Ruling for 3/31/20:
Continue this motion for relief from the automatic stay to 4/21/20 at 10:00 a.m., in view of Debtor's motion to sell the property and order thereon (dkt. 47, 51), and with Debtor directed to file and serve a status report no later than 4/14/20. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Patricia Ann Oliver Represented By
Hale Andrew Antico
Movant(s):
Nationstar Mortgage LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 24
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 26).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rogelio Cuevas- Flores Represented By William G Cort
10:00 AM
Joint Debtor(s):
Beatriz Garcia Cuevas Represented By William G Cort
Movant(s):
U.S. Bank National Association, as Represented By
Renee M Parker Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING, INC.
vs DEBTOR
Docket 32
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Deonne Louise Marilyn Watson Represented By Elena Steers
10:00 AM
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 28
- NONE LISTED -
Debtor(s):
Ruthee Short Represented By
Axel H Richter
Movant(s):
U.S. Bank National Association, as Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 35
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
10:00 AM
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jan Michael Foster Represented By Stephen L Burton
Movant(s):
Deutsche Bank National Trust Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 34
- NONE LISTED -
Debtor(s):
Beridiana Perez Represented By Stephen L Burton
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Angie M Marth
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
vs DEBTOR
Docket 38
- NONE LISTED -
Debtor(s):
Martin Orozco Pro Se
Movant(s):
United States Department of Represented By Elan S Levey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WANG YANG ENTERPRISES, LLC
vs DEBTOR
Docket 34
Debtor(s):
Judith Gonzalez Represented By Sunita N Sood
Movant(s):
Wang Yang Enterprises LLC Represented By Henry D Paloci
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 12
Grant as provided below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2) and (d)
(4).
To the extent, if any, that the motion seeks to terminate the automatic
stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
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Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Rose R Ramirez Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
2nd CHANCE MORTGAGE, INC.
vs DEBTOR
Docket 26
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Evidence
This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This Court makes no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mario Alberto Reyes Represented By Andrew P Altholz
Movant(s):
2nd Chance Mortgages Inc. Represented By Henry D Paloci
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NATIONAL ASSOCIATION
vs DEBTOR
Docket 27
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Carlys Franklin Bays Represented By William G Cort
10:00 AM
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BRIDGECREST CREDIT COMPANY, LLC
vs DEBTOR
Docket 26
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Clara Lila Gonzales Represented By Steven A Alpert
10:00 AM
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
333 South Hope Co., LLC vs
DEBTOR
Docket 31
Debtor(s):
Samini Cohen Spanos LLP Pro Se
Movant(s):
333 South Hope Co., LLC Represented By
R Gibson Pagter Jr.
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 69
Grant as provided below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed with all acts necessary or appropriate to collect insurance proceeds (and remit any overage to the Cjapter 13 Trustee).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless,
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the movant is permitted to enforce its claim by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any deficiency claim after application of insurance proceeds is subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Smith Represented By Joy M Johnson
10:00 AM
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BARRETT DAFFIN FRAPPIER TREDER & WEISS, LLP
vs DEBTOR
Docket 30
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be
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distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
In limiting the nonbankruptcy litigation as set forth above, this Bankruptcy Court emphasizes that it does not seek in any way to impinge on the authority of the Nonbankruptcy Courts presiding over the nonbankruptcy action. Rather, this Bankruptcy Court takes seriously its obligations, as a subordinate unit of the District Court, to manage this bankruptcy case. Those obligations include taking into consideration the interests of creditors (who are not parties to the underlying nonbankruptcy litigation), and preserving the bankruptcy estate by placing limits on any relief from the automatic stay that Congress has mandated (11 U.S.C. 362(a) & (d)).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
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D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors
weigh in favor of granting relief as set forth above. Most significantly:
As to the first Curtis factor (would relief result in partial or complete resolution of the issues?), granting relief would result in complete resolution of the issues and the issues involve matters of state law that can be resolved most expeditiously in the non-bankruptcy forum.
As to the second Curtis factor (connection with or interference with the bankruptcy case) and seventh Curtis factor (prejudice to other creditors/interested parties) this Court finds that proceeding to final judgment in the state court will not interfere with this case and will be most expeditious in bringing this litigation to a conclusion.
As to the fourth Curtis factor (whether a specialized tribunal has been established to hear the action) and the eleventh Curtis factor (whether the
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proceedings have progressed to the point where the parties are prepared for trial), this Court finds that although not a specialized tribunal, the state court would be best suited to determine the state law claims.
As to the tenth Curtis factor (interest of judicial economy) and the twelfth Curtis factor (the impact of the stay on the parties and the "balance of hurt"), this Court is persuaded that the matter is more properly determined by the state court because it involves matters of state law and Debtor has not filed an opposition or presented any argument to persuade this Court that the issues would be better dealt with in this Court.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Siracusa Represented By Ryan A. Stubbe
Movant(s):
Wells Fargo Bank, N.A. Represented By Cassandra J Richey
Barrett Daffin Frappier Treder & Represented By
10:00 AM
Trustee(s):
Cassandra J Richey
Kathy A Dockery (TR) Pro Se
10:00 AM
GREEN FORCE, INC.
vs DEBTOR
Docket 32
Grant, as set forth below.
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Relief to be granted
Limited relief
Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations.
No enforecement against property of the bankruptcy estate The stay remains in effect with respect to enforcement of any judgment
against property of the debtor's bankruptcy estate - any such property shall be
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distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim priority and discharge issues
Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay.
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to In re Choong (case no. 2:14-
bk-28378-NB, docket no. 31) (applying 11 U.S.C. 362(d)(4) post-foreclosure and distinguishing In re Ellis, 523 B.R. 673, 678-80 (9th Cir. BAP 2014)), and alternatively grounds other than section 362(d)(4) set forth in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017):
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within 180 days after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
As set forth below, the tentative ruling is to find that Debtor was involved in the scheme to hinder, delay, or defraud creditors.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Analysis
Background
Multiple bankruptcy cases have been used as part of a scheme to hinder and delay the foreclosure sale of the property commonly known as 340 Alahmar Terrace, San Gabriel, CA 91775 (the "Subject Property") by Wells Fargo Bank, N.A. ("Wells Fargo"). More recently the foreclosure sale finally occurred, but the current disputes concern the attempted eviction of Debtor Anthony Siracusa by the purchaser of the Subject Property, Green Force, Inc. ("Green Force").
According to Green Force, Debtor is acting in bad faith, "has not paid to live in the property since 2011," and has personally "evaded and hindered creditors for nine (9) years." Dkt.37, p.5:19-20. Debtor paints a different picture.
Debtor declares that he was ignorant of the multiple bankruptcy cases that were used to hinder, delay, and defraud Wells Fargo. According to Debtor, he was the victim of a scam by his former attorney and an employee of Wells Fargo to take his money in exchange for false promises of relief from foreclosure, and Debtor claims he was part of a "sting" operation by the Federal Bureau of Investigation. This Court will return to these allegations later, but for now this Court focuses on the relevant history and legal issues.
Relevant history
On 11/13/18, in one of the multiple bankruptcy cases hindering the foreclosure sale, Chief Judge Maureen Tighe issued an order granting "in rem" relief from the automatic stay with respect to the Subject Property under 11 U.S.C. 362(d)(4). See In re Pan Lea Kim (Case No. 1:18-bk-12380-MT), dkt. 21. That order was recorded in the real estate records on 12/18/18. See dkt.32, Ex.C. Much later Debtor filed a motion seeking relief from that order (the "Anti-In Rem Motion," id., dkt.27), but Judge Tighe denied that motion.
Dkt.44, 45.
Meanwhile, on 10/8/19, Debtor filed his chapter 13 petition commencing this case (dkt.1). On or about 10/10/19 a foreclosure sale was
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held and the Subject Property was sold to Green Force. Dkt.32, Ex.D. Debtor does not dispute that, pursuant to the in rem order, that foreclosure sale did not violate the automatic stay. See In re Alakozai, 499 B.R. 698 (9th Cir. BAP 2013) (foreclosure sale did not violate automatic stay because of in rem order in prior case).
On or about 11/13/19, Green Force served Debtor with a 3-day notice to quit. On or about 12/23/19, Green Force filed an unlawful detainer complaint against Debtor. See dkt.38.
This Court takes judicial notice that Green Force filed a notice in the unlawful detainer proceeding, on or about 2/4/20, asserting that, due to the in rem order, Debtor's bankruptcy case "does not create a stay." See In re Pan Lea Kim (Case No. 1:18-bk-12380-MT), dkt.29, Ex.4. Green Force's notice made no distinction between in rem acts (which the in rem order clearly permitted) and in personam acts, as to which the automatic stay still might apply.
The parties' contentions
Debtor does not dispute that any attempts to evict him did not violate the automatic stay. But Green Force also seeks damages, and Debtor asserts that this violates the automatic stay.
The parties are vague about what damages Green Force seeks from Debtor. But based on this Court's review of a proposed State Court judgment, referencing a hearing on 2/13/20, it appears that the State Court's oral ruling was to grant Green Force not only restitution of the Subject Premises but also $11,436.38 "as holdover damages" and "court costs as provided by law in the sum of $1,100.00" (dkt.36, Ex.4) (emphasis added).
Green Force continues to maintain that no automatic stay applies, but it does not explain why the automatic stay is inapplicable to its in personam acts to obtain a judgment for damages against Debtor. Nevertheless, the tentative ruling is to agree with Green Force's conclusion that the automatic stay does not apply to those specific acts.
Debtor has not established any violation of the automatic stay As noted above, Green Force has not explained why the automatic
stay does not apply. But that is putting the cart before the horse. Debtor has not explained how the automatic stay of 11 U.S.C. 362(a) does apply. In particular, Debtor does not address some important limitations on the
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automatic stay, emphasized below:
Except as provided in subsection (b) of this section, a [bankruptcy petition] operates as a stay, applicable to all entities, of—
the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title;
the enforcement, against the debtor or against property of the estate, of a judgment obtained before the commencement of the case under this title;
any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
any act to create, perfect, or enforce any lien against property of the estate;
any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title. [11 U.S.C. 362(a) (emphasis added)]
Debtor does not explain how Green Force's postpetition unlawful detainer proceeding "was or could have been commenced before the commencement of the [bankruptcy] case" under paragraph "(1)" above. Green Force had no interest in the Subject Property until the postpetition
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foreclosure sale, so its unlawful detainer proceeding could not have been commenced prepetition.
Nor has Debtor explained how Green Force's acts to recover holdover damages from Debtor and costs of suit can constitute acts involving a "claim against the debtor that arose before the commencement of the [bankruptcy] case" under paragraph "(6)" above, or could amount to enforcement of a "judgment obtained before the commencement of the [bankruptcy] case" under paragraph "(2)" above. Again, Green Force could not have had any claim or judgment against Debtor before commencement of the case because the foreclosure sale to Green Force did not occur until two days postpetition, and the holdover damages that Green Force seeks all arose postpetition.
The tentative ruling is that Debtor has not established that the automatic stay applies to any acts Green Force has taken to date. To be clear, as Green Force concedes, it cannot "enforce" any damages award in this chapter 13 case - that would be an "act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate" that is prohibited by paragraph "(3)" of section 362(a). See 11
U.S.C. 1306 (property of estate includes postpetition earnings, and property acquired postpetition); and see Reply (dkt.37, p.9:3-9).
In sum, the tentative ruling is that Green Force is correct when it asserts in its motion that the automatic stay does not apply to the acts that it has already pursued, and any future acts to obtain (not collect) any judgments against Debtor arising from Debtor's postpetition acts or failures and refusals to act. That is one ground to issue an order granting the motion.
Alternatively, if the automatic stay does apply for some reason (contrary to this Court's tentative ruling above), it is appropriate to grant prospective and retroactive relief
Green Force is the owner of the Subject Property. It has been unable to take possession because Debtor is occupying the property, notwithstanding the foreclosure sale to Green Force. That is "cause" under 11 U.S.C. 362(d)(1) to terminate the automatic stay prospectively to permit Green Force not only to evict Debtor but also to recover any postpetition damages and costs.
As for retroactive annulment of the stay, one issue is whether Green Force knew or should have known of the automatic stay but proceeded in disregard of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003);
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and see also In re Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir. 2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Green Force asserts that prior to the hearing on the Anti-In Rem Motion it was "not aware of any ... stays that could hinder its possession of the property." Dkt.37, p.6:15-18. This Court interprets that phrase to mean that, although Green Force was aware of this bankruptcy case, it was not aware of any theory under which the automatic stay in this case would stay its postpetition efforts to obtain (but not collect) a judgment for holdover damages and costs. As set forth above, this Court is not aware of any such theory either.
This favors annulment, as do the other facts and circumstances. See id., and see Reply (dkt.37) pp.5:1-7:27 and passim. Therefore, even supposing for the sake of discussion that Debtor could articulate some persuasive argument that the automatic stay did apply, the tentative ruling is that retroactive annulment of the automatic stay would be appropriate.
In sum, the alternative tentative ruling is that, if the automatic stay somehow does apply (contrary to this Court's tentative ruling above), then Green Force is entitled to both prospective and retroactive relief from the automatic stay. That is an alternative basis to grant Green Force's motion.
Debtor's allegations about being a victim, rather than a perpetrator, of the scheme to hinder, delay, or defraud creditors
Debtor does not clearly explain the relevance of his claims that he was ignorant of the multiple bankruptcy cases that were used to hinder, delay, and defraud creditors, or that he was the victim of a scam by his former attorney and an employee of Wells Fargo to take his money in exchange for false promises of relief from foreclosure, and that he was part of a "sting" operation by the FBI. Presumably Debtor is attempting (a) to counter Green Force's allegations of "bad faith," which is alternative "cause" for relief from the automatic stay (11 U.S.C. 362(d)(1)), and (b) to counter Green Force's allegations that he was part of the scheme to hinder, delay, and/or defraud creditors. The tentative ruling is that there is sufficient evidence of Debtor's bad faith to support both forms of relief.
As a preliminary matter, Debtor's story is unsupported by any evidence. For example, Debtor alleges (a) that in March of 2018 his then-
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attorney Mr. Brifman continued to press Debtor to "bribe Wells Fargo employee(s)" to get "a loan modification for [the Subject Property] approved by Wells Fargo" (dkt.36, Ex.1, p.3:13-18); (b) the FBI allegedly provided him with $17,000 to "put in my bank account and then wire to Brifman" (id., p.7:16-17); and (c) on 6/26/18 Debtor allegedly "deposited the FBI money directly into Brifman's Comerica account" and "provided the deposit receipts and emails to the FBI." Id., p.8:1-3. Debtor does not provide any such deposit receipts or emails. Likewise, all of Debtor's other allegations are unsupported by any evidence.
Second, Debtor's allegation that he was ignorant of the other bankruptcy cases used to hinder, delay, and defraud Wells Fargo is contradicted by the evidence before this Court. That evidence shows that Debtor was served with the motion seeking "in rem" relief in one of the bankruptcy cases. See In re Pan Lea Kim (Case No. 1:18-bk-12380-MT), dkt. 11 (last page).
In this case Debtor flatly denies having received the motion (dkt.36, Ex.1, p.12, para.61) ("I was never served with a copy of the motion"), but he offers no legal authority or factual basis to disregard the proof of service. In any event, Debtor's declaration admits (dkt.36, Ex.1, p.11, para.59 & 60) that he was shown the document sometime during the same month (October of 2019).
Next Debtor claims he "did not understand the significance of this document or how it was connected to me or my house." Id. That is nonsense.
The motion lists the Subject Property as "The Property at Issue"; it refers to Debtor by name; it describes in detail the multiple bankruptcy cases that were used to hinder, delay, and defraud creditors with respect to the Subject Property; and it requests that the automatic stay not apply in any future bankruptcy case affecting the Subject Property ("in rem" relief). See In re Pan Lea Kim (Case No. 1:18-bk-12380-MT), dkt. 11, at p.3, para.2, pp.
14-15, and passim. The most casual review of that motion would have alerted Debtor to the scam of which he claims he was ignorant.
In sum, the tentative ruling is to find that Debtor has indeed engaged in bad faith, and was part of the scheme to hinder, delay, and defraud creditors. That is an alternative basis to grant Green Force's motion.
Conclusion
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For all of the foregoing reasons, Debtor has not established that any
provision of the automatic stay prevents Green Force from obtaining (but not collecting) a judgment against Debtor for holdover damages, costs, and any other postpetition damages. Alternatively, if the automatic stay somehow does apply (contrary to this Court's conclusion), Green Force's purchase of the Subject Property at the foreclosure sale, and Debtor's continued occupancy of the property, are sufficient "cause" for retroactive and prospective relief from the stay, including in rem relief. Alternatively, Debtor's bad faith, including his participation in the scheme to hinder, delay, or defraud creditors, is an alternative ground for such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Siracusa Represented By Ryan A. Stubbe
Movant(s):
Green Force, Inc. Represented By Zi Chao Lin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SUNTRUST BANK
vs DEBTOR
Docket 64
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was originally self-calendared for hearing on 6/4/19, but was taken off calendar to allow Debtor an opportunity to participate in the loan modification program. On 2/25/20, Movant re-noticed this matter for this date based on Debtor's failure to obtain a loan modification or otherwise address Movant's claim - which Movant states is now $132,128.58 post- petition delinquent (see dkt. 88).
Debtor timely opposed the motion (dkt. 94) arguing that his brother has obtained financing and is ready to proceed with a refinance that would pay Movant in full. But Debtor states that the contemplated refinance cannot occur until this case is closed. Debtor asks this Court to deny the motion or delay the foreclosure sale for 60 days.
The tentative ruling is that the evidence of a refinancing offer may provide some protection, but (a) it is unclear whether the proposed refinancing, if it closes, will provide Movant with the same recovery it could expect as of the petition date (i.e., whether any protection from the proposed refinancing would be "adequate") and (b) it is unclear how certain the
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refinancing is (i.e., is it really "protection" or just the hope of protection?). The tentative ruling is that, even if the proposed refinancing looks promising on both grounds, the proposed continuance or delay of 60 days is too long.
The parties should be prepared to address the issues set forth above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/4/19:
Take this motion for relief from the automatic stay off calendar, in view of this Court's order (dkt. 73) granting the debtor's motion to commence loan modification program, without prejudice to the movant self-calendaring this motion again if the loan modification program is terminated without a consensual loan modification. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ali Rahimi Represented By
Stella A Havkin
Movant(s):
SunTrust Bank as attorney in fact for Represented By
Caren J Castle
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G, MORTGAGE-BACKED SECURITIES, 2018-G
vs DEBTOR
Docket 30
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be
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prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred Ken Wing Li Represented By Ryan A. Stubbe
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ABS LOAN TRUST VI
vs DEBTOR
Docket 38
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for Movant to confirm whether the alleged arrears have been brought current. There is not tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be
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prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosa Candida Perez Represented By Thomas B Ure
Movant(s):
ABS Loan Trust VI Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 53
Debtor(s):
Sonia Noemi Delgado Represented By Axel H Richter
Movant(s):
Carrington Mortgage Services, LLC Represented By
S Renee Sawyer Blume Christopher Giacinto Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 06/11/19, 7/2/19; 08/06/19, 9/17/19, 10/15/19, 02/18/20
NATIONAL MORTGAGE, LLC
vs DEBTOR
Docket 62
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the previous hearing, this Court was informed that Movant's counsel was awaiting information from Movant about whether the loan is postpetition current or reinstated. There is no tentative ruling, but the parties should be prepared to address (a) whether the Chapter 13 Trustee has received the information she requested, (b) whether the alleged arrears have been brought current and/or (c) whether some other disposition is appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20 (same as for 10/15/19):
Appearances required. At the previous hearing, this Court was informed that the Chapter 13 Trustee had not yet received certain information requested from Movant. There is no tentative ruling, but the parties should be prepared to address (a) whether the Chapter 13 Trustee has received the information she requested, (b) whether the alleged arrears have been brought current and/or (c) whether some other disposition is appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/17/19:
Appearances required. At the previous hearing, Movant informed this Court that it had provided the Chapter 13 Trustee with a payoff statement and that the Chapter 13 Trustee required further accounting. There is no tentative ruling, but the parties should be prepared to address (a) the status of that further accounting, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/6/19:
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Appearances required. At the previous hearing, the parties noted that another of Debtor's properties had been sold and that Movant's debt may be paid in full out of the proceeds. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/2/19:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 35
Debtor(s):
John Martin Archer Jr. Represented By Stephen Parry
Movant(s):
Wilmington Savings fund society, Represented By
Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 31
Debtor(s):
Juana Rangel Represented By
Andrew Moher
Movant(s):
The Bank of New York Mellon fka Represented By
Kelsey X Luu
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 08/06/19, 9/10/19, 10/29/19, 12/10/19, 02/18/20
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 29
Tentative Ruling for 3/31/20:
This matter was continued to this date so that, if Debtor were not performing under the LMM trial period (see Order, dkt.42), Movant could bring such non- performance to the attention of this Court (such as by filing and serving a declaration, or raising such non-performance at the hearing). The docket does not reflect any such non-performance, so the tentative ruling is to continue this hearing to 5/5/20 at 10:00 a.m. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This matter was continued to this date so that, if Debtor were not performing under the LMM trial period (see Order, dkt.42), Movant bring such non- performance to the attention of this Court (such as by filing and serving a declaration, or raising such non-performance at the hearing). The docket does not reflect any such non-performance, so the tentative ruling is to continue this hearing to 3/31/20 at 10:00 a.m. Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19 and 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
There is no tentative ruling, but the parties should be prepared to address whether Debtor is performing under the LMM trial period (see Order, dkt.42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Continue to 10/29/19 at 10:00 a.m. in view of Debtor's entry into the LMM
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program (see Order, dkt.42) and Debtor's status report (dkt.41). If Debtor is performing under the LMM trial period, and files a declaration saying so prior to the continued hearing, then this Court anticipates a further continuance of this hearing. Appearances are not required on 9/10/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for for 8/6/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Margarita Dolores Gonzalez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth Jacky Wang
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 55
Tentative Ruling for 3/31/20 (same as for 2/18/20, except telephonic procedures):
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 64).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
William Smith Jr. Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Nancy L Lee Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 33
Debtor(s):
Jose A. Vallejos Represented By Donald E Iwuchuku
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SCHOOLSFIRST FEDERAL CREDIT UNION
vs DEBTOR
Docket 8
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
As set forth in this Court's order (dkt. 11), this matter was continued to this date because Debtor appeared at the hearing on 2/18/20 and represented that she is negotiating a reaffirmation agreement with Movant.
The order included provisions that, if Debtor did not make certain adequate protection payments, Movant could file a declaration to that effect and lodge a proposed order terminating the automatic stay. Those things have no happened, so perhaps the parties can work out an adequate protection order, a reaffirmation agreement, or some other solution.
Meanwhile, this Court notes that, from a review of the docket, no reaffirmation was filed prior to entry of Debtor's discharge on 2/24/20 (dkt. 13). On the other hand, the docket might not be fully accurate: after the order discharging Debtor (dkt.13), there is a docket entry (dkt.16) purporting to vacate an "order of dismissal" (emphasis added), although the docket does not reflect any dismissal; and thereafter there is a written order "Setting Aside Closing [sic] and Reopening Estate" (dkt.17), although the docket does not reflect any closing of this case.
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The parties are directed to address what relief they each want, and
whether this Court should vacate any of the orders and docket entries described above.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marianne Evette Villa Represented By Brian J Soo-Hoo
Movant(s):
SchoolsFirst Federal Credit Union Represented By
Paul V Reza
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
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Docket 17
Grant, (a) subject to any persuasive opposition at the hearing, and (b) by vacating the dismissal, but without retroactive effect because insufficient legal authority has been presented for this Court's power to grant any retroactive effect, and in addition this Court is not aware of any need for such retroactive relief. Accordingly, the tentative ruling is that the automatic stay will be reimposed as of this hearing date. Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Norma Alicia Meraz Sanchez Represented By A Mina Tran
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 161
Grant, except as to any dual agency, as set forth below. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's opposition (dkt. 163), Pensco Trust Company ("Pensco") response to opposition (dkt. 167), Trustee's reply (dkt. 168) and evidentiary objections (dkt. 169).
Reasons:
The tentative ruling is to grant the Trustee's Application To Employ Rodeo Realty (the "Broker Employment Application," dkt. 161) except as to dual agency, overrule Debtor's objection.
Dual agency
In the Broker Employment Aplication the Trustee states that "in the
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event Rodeo may represent potential purchasers, the Trustee consents to such dual representation." Dkt. 161, p.4:26-27. Judge Bason's standard employment terms, outlined in his posted Pocedures available at cacb.uscourts.gov, provide that no dual agency is permitted. Judge Bason's Procedures, p.10. See also Tentative Ruling for 3/31/20, 11:00 a.m., calendar no.4 (unrelated case involving request for dual agency).
Evidentiary objections (dkt. 169)
The tentative ruling is to sustain the Trustee's evidentiary objections to Debtor's declaration (dkt. 163, p.8-10), except as to relevance of the 2018 appraisal - it is still inadmissible for the other reasons given by the Trustee, and it is not as persuasive as more recent opinions of value, but it would have some relevance if it were admissible.
Debtor's objection (dkt. 163)
Necessity for employment of a real estate broker Debtor's objection argues that because the Trustee has failed to
"identify any immediate necessity to list the Debtor's Property for sale," the Broker Employment Application should be denied. Dkt. 163, p.3:16-24.
While Debtor is correct that the Broker Employment Application does not identify an immeidate need, the Trustee's reply provides ample support. First, as a general matter, one of the Trustee's primary functions is to "collect and reduce to money the property of the estate." Dkt. 168, p.4:25-26.
Employing a broker to market the property is to further that end. Second, because of the uncertainty surrounding coronavirus and how that may affect the market, it is the broker's opinion that it is more prudent to list the property now than spend money to improve the property and perhaps get a higher price. Id. at p.6:19-23. Lastly, as pointed out by both Pensco and the Trustee, there is no evidence that Debtor has been making payments to secured creditors, which generally erodes any equity cushion. See id. at p.4:3; see also dkt. 167, p.2:25-26.
The tentative ruling is that the Trustee has established that the employment of a real estate broker is necessary.
Alleged value of the property and claims
The objection also argues that "there is no basis for the Trustee to sell the Property at this time" because secured creditors are protected by an adequate equity cushion based on the property being worth $8.4 million and estimated liens of "well below" $4.5 million. Id. at pp.3:25-4:17.
This Court does not find Debtor's argument persuasive. First, the
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Trustee is not proposing the sell the property via this application, but to employ a real estate broker to list the property. Should the Trustee come forward with a sale motion and a proposed buyer, Debtor may object to the sale of the property at that time. Second, the appraisal on which Debtor is relying to say that the property is worth $8.4 million is from 2018 (see dkt. 163, Ex. E), which is somewhat outdated evidence of the value of the property. The proposed broker's declaration explains the basis for valuing the property at approximately $6.2 million includes a 2019 visit to the property and a review of recent sales in the area. Dkt. 168, pp.14:16-15:6. The Court finds the proposed broker's evidence is more probative of the current value of the property than Debtor's 2018 appraisal. Lastly, Debtor's statement that the claims total $4.5 million is based on the assumption that she will be successful in reducing the amount of several claims. See dkt. 163,
pp.4:25-6:14. Until claim objections are filed and this Court has an opportunity to review them, any statements re reducing claim amounts are speculative. In addition, as the Trustee points out, Debtor's figures do not address how she would pay general unsecured claims (dkt. 168, p.8:8-9) or the claim of Ms. Olivia Vaateta should the claim be found to be meritorious. Dkt. 168, p.7:13-14; p.8:8-19; p.9:10-15. It also appears that Debtor may have underestimated the costs of administration. See dkt. 168,
pp.9:24-10:15.
The tentative ruling is that the Debtor's objection on this point is unpersuasive.
Debtor's attempt to refinance the property
Lastly, Debtor argues that the Broker Employment Application should be denied because Debtor "is diligently trying to refinancing the Property by obtaining a loan with sufficient cash out to pay all allowed claims." DKt. 163, p.4:18-19.
Debtor has had considerable time to attempt a refinance, and she does not explain how the Trustee employing a broker prevents her from continuing her efforts to refinance the property. In addition, as the Trustee points out in the reply and is discussed above, any refinance would have to address unsecured claims and contingent claims.
The tentative ruling is that the Debtor's objection on this point is unpersuasive.
Conclusion
For the reasons set forth above, the tentative ruling is to overrule
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Debtor's objection the the Broker Employment Application.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Docket 522
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Yuichiro Sakurai Represented By Nicholas W Gebelt
Joint Debtor(s):
Akemi Sakurai Represented By Nicholas W Gebelt
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Trustee(s):
Rosendo Gonzalez (TR) Represented By Timothy J Yoo Carmela Pagay
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Docket 54
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Phillip Walker Pro Se
Trustee(s):
Heide Kurtz (TR) Represented By
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Timothy J Yoo Carmela Pagay
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(B) Approving the Form and Manner of Notice and Bid Process
Docket 253
Grant in part and deny in part as set forth below. Appearances required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Bank of America, N.A.'s non-opposition (dkt. 268); no opposition from the Debtors is on file.
Analysis
The tentative ruling is to grant the sale motion, subject to
payment in full of Bank of America's lien (dkt. 268),
any overbids at the hearing,
the filing of a "good faith" declaration (11 U.S.C. 363(m)) by the winning bidder that substantially complies with Judge Bason's posted procedures (available at www.cacb.uscourts.gov), and
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no dual agency.
On this last issue, the tentative ruling is to deny the request (dkt.253,
Notice, p.4:10-17, Motion, p. 5:7-17 at PDF p.16, Temple Decl. para.5, at PDF p.37) to permit other real estate brokers ("Affiliated Brokers") in the same office as the real estate brokers for the Trustee (the "Trustee Brokers") to represent prospective buyers - i.e., to modify the terms of employement.
See Order (dkt.236) (copy at dkt.253, Ex.5, at PDF pp.89-91). The asserted negative impact on the sale price is not a sufficient reason to depart from the prohibition on such dual agency, for three alternative reasons.
First, professionals employed by the bankruptcy estate cannot have conflicts of interest. See 11 U.S.C. 101(14) and 327(a) (professionals may not "hold or represent an interest adverse to the estate"); In re Circle K Corp., 279 F.3d 669 (9th Cir. 2002). This Court is not persuaded that it can, or should, depart from the plain meaning of the statute.
Second, dual agency would create a financial incentive to favor sales to persons whom the broker also represents. For example, a 5% (dual agency) commission on a $500,000 sale is worth more to a broker ($25,000) than a 2.5% (single agency) commission on a $650,000 sale ($16,250), so a broker with a choice between such sales has a financial incentive ($8,750) to favor the former sale, even though that would depress the price by $150,000. This is not just a hypothetical concern.
This Court takes judicial notice that dual agency is widely viewed with skepticism because it involves potential or actual conflicts of interest. See, e.g., Horiike v. Coldwell Banker Res. Brokerage Co., 383 P.3d 1094, 1029-32 and 1041 (Cal. S.Ct. 2016) (noting historical lack of dual agency, and "fundamental problem in dual agency relationships — potential and sometimes unavoidable conflicts of interest") (citation and internal quotation marks omitted).
In addition, years after Judge Bason posted his policy of prohibiting dual agency, he experienced first hand the negative effects of dual agency. He made a higher and better offer on a property by the bid deadline (through his broker), but the seller's brokers had a dual agency arrangement with a competing prospective purchaser and Judge Bason never even heard back from the seller.
Of course, this Court does not intend in any way to impugn the integrity of the Trustee Brokers. The point is not that they would actually violate any duties to the bankruptcy estate - this Court presumes they would not. Rather,
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the point is that it is inappropriate and unfair to place estate professionals in the position of having conflicting incentives.
Third, the assertion that the prohibition on dual agency results in lost opportunities rests on a premise that, admittedly, is all too real. But that premise is also incomplete.
The all too real part is that any Affiliated Brokers may well fail to let their clients know about the subject property, even if that property would be an attractive property for their clients, because (under this Court's bar on dual agency) the Affiliated Brokers cannot receive a 2.5% commission on that property. The incomplete part is that (a) such Affiliated Brokers risk losing their clients, and their reputation, if those clients find out about the missed opportunity to bid on the subject property (although, admittedly, some brokers are not very concerned about those risks), and (b) such Affiliated Brokers have a "win-win" alternative: they can do right by their client by referring their client, for this one property, to a broker who does not work in the same office, and the broker they choose can be one who has an incentive (i) not to "steal" the client and (ii) to return the favor (e.g., a broker who is retained by bankruptcy trustees, who faces the same prohibition on dual agency, and who therefore has reasons to refer one of their own clients to the Affiliated Broker at a future date). See generally Order (dkt.236) (copy at dkt.253, Ex.5, at PDF pp.89-91) (permitting brokers who are affiliated with the Trustee Brokers, but who do not work out of same office, to represent buyers, subject to otherwise applicable ethical and legal restrictions).
As with the Trustee Brokers, this Court does not intend to impugn the
integrity of the Affiliated Brokers. The point is only that, if this Court presumes that the Affiliated Brokers will act with integrity and some creativity, then there should not be any negative impact - or at least none that outweighs the advantages - arising from this Court's prohibition on dual agency. (And if this Court were to presume the contrary - i.e., a lack of integrity - that only reinforces the second alternative reason to deny the request to permit dual agency: the dangers of conflicting incentives for brokers.)
For any and all of these three alternative reasons, the tentative ruling is to deny the request to lift the prohibition on dual agency.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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(B) Approving the Form and Manner of Notice and Bid Process
Docket 256
Grant in part and deny in part as set forth below. Appearances required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
The tentative ruling is to grant the sale motion, subject to
any overbids at the hearing,
the filing of a "good faith" declaration (11 U.S.C. 363(m)) by the winning bidder that substantially complies with Judge Bason's posted procedures (available at www.cacb.uscourts.gov), and
no dual agency, for the reasons set forth in connection with the motion to sell another property (calendar no. 4, 3/31/20 at 11:00 a.m.).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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Writ of Assistance
Docket 263
Grant. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua
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Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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Adv#: 2:20-01013 Aguilar et al v. OCWEN LOAN SERVICING, LLC et al
Docket 4
Please see the tentative ruling for the status conference (Calendar no. 8, 3/31/20 at 1:00 p.m.).
Debtor(s):
Jose Joel Aguilar Pro Se
Defendant(s):
OCWEN LOAN SERVICING, LLC Represented By
Sara L Markert
PHH MORTGAGE Represented By Sara L Markert
SPECIALIZED LOAN Pro Se
Mortgage Electronic Registration Represented By
Sara L Markert
Kathy A Dockery, Chapter 13 Pro Se
Law Office of Les Zieve Pro Se
Joint Debtor(s):
Guillermina Aguilar Pro Se
Plaintiff(s):
Jose Joel Aguilar Pro Se
Guillermina Aguilar Pro Se
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:20-01013 Aguilar et al v. OCWEN LOAN SERVICING, LLC et al
2. Injunctive relief; 3. Recovery of property; 4. Fraudlent transfer; 5.Removal of claim
Docket 1
Grant the motion to dismiss (adv. dkt. 4), overrule the opposition (adv.dkt.11) for the reasons stated in the reply (adv.dkt.13), and dismiss this adversary proceeding as to all defendants, without leave to amend, for lack of subject matter jurisdiction because this Court dismissed Debtors' bankruptcy case on 4/22/19 (Main case, 2:19-bk-10116-NB, dkt. 27, aff'd dkt. 48). Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order (a) granting the motion to dismiss as to all defendants and (b) dismissing this proceeding via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Joel Aguilar Pro Se
Defendant(s):
OCWEN LOAN SERVICING, LLC Pro Se PHH MORTGAGE Pro Se
SPECIALIZED LOAN Pro Se
Mortgage Electronic Registration Pro Se
Kathy A Dockery, Chapter 13 Pro Se
Law Office of Les Zieve Pro Se
Joint Debtor(s):
Guillermina Aguilar Pro Se
Plaintiff(s):
Jose Joel Aguilar Pro Se
Guillermina Aguilar Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01520 Catalina Sea Ranch, LLC v. Primary Ocean Producers Holdings, LLC
To Recover Avoided Transfer; (4) For Declaratory Relief To Determine Validity, Priority Or Extent Of Lien And Other Interest In Property; (5) For Declaratory Relief To Determine Violation Of Automatic Stay; And (6) For Disallowance Of Claims [11 U.S.C. §§ 362, 502, 549, 550, and 551]
Docket 1
Continue as set forth below. Appearances are not required on 3/31/20. If you wish to dispute this tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Joint Status Report
The Summons And Notice Of Status Conference (adv. dkt. 2) directed the parties to file a joint status report no later than 14 days before this status conference (3/17/20). As of the drafting of this tentative ruling, no status report has been filed. Why not?
This Court notes, however, that according to a recent status report in the main case (dkt.103, p.2:21-23) the parties are pursuing settlement.
Accordingly the tentative ruling is to continue this matter as set forth below, without setting any other deadlines at this time.
This Court also notes that it has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's
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standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/30/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 5/5/20
Continued status conference: 5/19/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
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chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Defendant(s):
Primary Ocean Producers Holdings, Pro Se
Plaintiff(s):
Catalina Sea Ranch, LLC Represented By Richard H Golubow
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Adv#: 2:20-01009 The New School of Cooking, Inc. v. Allen J. Manzano and Barbara C.
Docket 1
Take this matter off calendar in light of the stipulated judgment entered 3/5/20 (adv. dkt. 11, 12, 13). Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
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Crystle Jane Lindsey
Defendant(s):
Allen J. Manzano and Barbara C. Pro Se
Plaintiff(s):
The New School of Cooking, Inc. Represented By
James R Selth
11:00 AM
Docket 1
Debtor(s):
Samini Cohen Spanos LLP Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
11:00 AM
Docket 10
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtor should be prepared to address the issues raised in this Court's order to show cause (dkt. 10).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rose R Ramirez Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Pro Se
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
11:00 AM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20
Docket 323
Tentative Ruling for 3/31/20:
Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions"). See below for tentative dispositions of various matters, and continuances.
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pimentel v. Layfield et al, Case No. 2:19-ap-01069-NB ("Pimentel Adv.").
L&B, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Lay-Invol, status conference
11:00 AM
Continue as set forth in part "(2)" of this tentative ruling, below.
Pimentel Adv.
Status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Substantive motions
As a preliminary matter, as of the preparation of this tentative ruling, no reply papers appear on the docket. Although Mr. Layfield attempted to submit reply briefing via e-mail on 3/25/20 to Judge Bason's Courtroom Deputy (as well as Plaintiff's counsel and other interested parties) and allegedly sent overnight mail copies to the Court, the tentative ruling is that is insufficient.
First, Mr. Layfield's pleadings were not physically received by this Court by the 3/24/20 reply deadline. Second, and more importantly, e-mail transmission does not comply with the filing procedures this Court previously ordered, as an accommodation to Mr. Layfield, permitting him to file his papers using special procedures due to his inability to file papers electronically (because he is unrepresented and disbarred). Among other things, this Court required papers to be filed on a compact disk ("CD"), rather than via other electronic means, so that the proposed papers could be scanned for computer viruses. See, e.g., L&B dkt.362, p.3:14-15; dkt. 367 para."(5)." Therefore, until the papers appear on the docket this Court will not review them.
Defendant/Debtor Mr. Layfield's motion for judgment on the pleadings ("MJOP" adv. dkt. 42), Plaintiff Mr. Pimentel's First Amended Complaint ("FAC," adv. dkt. 20), Order denying Mr. Layfield's motion to dismissal FAC ("Order Denying MTD," adv. dkt. 36), Mr. Layfield's Answer to FAC (adv. dkt. 38), Mr. Pimentel's opposition to motion for judgment on the pleadings (adv. dkt. 47) and request for judicial notice (adv. dkt. 48), no reply is on file
The tentative ruling is to deny the MJOP because Mr. Layfield has not established any basis to reconsider this Court's Order Denying MTD under Rule 60(b) (Fed. R. Civ.P.) and any arguments not made in connection with Debtor's motion to dismiss the FAC were waived and forfeited.
Alternatively, and in addition, as to Plaintiff's first claim for relief
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(declaratory relief, restitution, constructive trust), Mr. Layfield has not cited the standard for preclusion or discussed how each of the requisite elements of preclusion are satisfied. See e.g., Tritz v. U.S. Postal Serv., 721 F.3d 1133, 1141 (9th Cir. 2013) ("Res judicata applies where there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between parties"). Instead, Mr. Layfield jumps to the incorrect conclusion that because this Court previously granted a motion to dismiss defendant Affeld Grivakes, preclusion principles also bar Plaintiff's claims against him on the same grounds.
Although it may be true that there is no basis to establish a constructive trust at all, this Court does not agree that the analysis this Court applied for Affeld Grivakes necessarily applies to Mr. Layfield. This Court previously ruled that, when there was evidence that Plaintiff's funds were commingled with funds that were converted to services performed in other cases handled by Affeld Grivakes, that led to the recovery of settlement funds in those cases, Plaintiff had not established a constructive trust over those funds. But that is different from whether there could be any constructive trust over any and all funds that might or might not be within Mr. Layfield's custody or control.
Given that Mr. Layfield still has not complied with his duty to file bankruptcy schedules, it is premature to conclude that there is not a pool of assets upon which Plaintiff might be entitled to a constructive trust. To use a hypothetical example, suppose that Mr. Layfiled placed millions of dollars in Swiss bank accounts and labeled one of the accounts "Pimentel settlement funds." In such an instance, it is plausible that Plaintiff could establish a basis to impose a constructive trust over that account.
While this is an extreme hypothetical (and there is nothing presently in the record to suggest that any such account exists), the point is just to illustrate that at this early stage of litigation, Mr. Layfield has not established that there is no basis upon which Plaintiff could establish a constructive trust (against someone other than Affeld Grivakes). Whether a constructive trust could hold up against the bankruptcy estate, or otherwise be enforced, is an entirely separate issue and one that is not suitable for disposition at this time.
Mr. Layfield's motion to disqualify McMurray & Henriks, LLP (the "Firm") and Yana Henriks ("Ms. Henriks") as Mr. Pimentel's counsel ("Disqualification Motion," adv. dkt. 44), The Firm/Ms. Henriks'
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opposition (adv. dkt. 46), no reply is on file
The tentative ruling is to deny the Disqualification Motion with leave to amend, because the motion is not supported by any evidence in support of Mr. Layfield's allegations and the newly presented evidence attached in support of the untimely and improper reply should have been submitted in the motion and is appropriately ordered striken.
Proposed orders: Mr. Pimentel is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR
9021-1(b)(1)(B).
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conferences (L&B, Lay-Invol., & Pimentel Adv.) Continue status conferences to 8/4/20 at 11:00 a.m., to be concurrent with other matters. No written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
Adv#: 2:19-01069 Pimentel v. Layfield et al
Docket 41
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (3/31/20 at 11:00 a.m.).
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
WESLEY Howard AVERY Pro Se
Affeld Grivakes LLP Represented By Damion Robinson
Plaintiff(s):
Rodney A Pimentel Represented By Yana G Henriks
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01069 Pimentel v. Layfield et al
Docket 44
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (3/31/20 at 11:00 a.m.).
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
WESLEY Howard AVERY Pro Se
Affeld Grivakes LLP Represented By Damion Robinson
Plaintiff(s):
Rodney A Pimentel Represented By Yana G Henriks
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01069 Pimentel v. Layfield et al
Cont'd Status Conference re: Complaint Against Dischargeability
1) Declaratory Relief and 2) Fraudulent Transfer / Concealment fr. 5/21/19, 06/04/19, 7/30/19, 10/1/19
Docket 1
Tentative Ruling for 3/31/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (3/31/20 at 11:00 a.m.).
Tentative Ruling for 10/1/19:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 4 (10/1/19 at 2:00 p.m.).
Tentative Ruling for 7/30/19:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (7/30/19 at 11:00 a.m.).
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
WESLEY Howard AVERY Pro Se
Affeld Grivakes LLP Represented By Damion Robinson
11:00 AM
Plaintiff(s):
Rodney A Pimentel Represented By Yana G Henriks
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01070 Hickey v. Layfield
of Dischargeability of Debt [11 U.S.C. Section 523(a)(4)]); 3) Determination of Dischargeability of Debt [11 U.S.C. Section 523(a)(6)]
fr. 05/21/19, 10/15/19
Docket 1
Tentative Ruling for 3/31/20:
Continue to 8/4/20 at 11:00 a.m., pending the outcome of Mr. Layfield's criminal proceedings and appeal of this Court's order denying his motion for judgment on the pleadings (adv. dkt. 12, 14). Joint status report due 7/21/20. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
11:00 AM
Continue to 11/5/19 at 11:00 a.m. based on the Joint Status Report (dkt. 5). Appearances are not required on 5/21/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
Plaintiff(s):
Fred A. Hickey Represented By Derrick F Coleman
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01071 Richard M. Pachulski, Chapter 11 Trustee of the Ba v. Layfield
fr. 05/21/19, 11/5/19
Docket 1
Continue to 8/4/20 at 11:00 a.m. based on the Joint Status Report (adv. dkt. 27).
Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
Continue to 11/5/19 at 11:00 a.m. based on the Joint Status Report (dkt. 5). Appearances are not required on 5/21/19.
11:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip James Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski, Chapter 11 Represented By
James KT Hunter
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen
11:00 AM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19, 02/18/20, 3/3/20
Docket 1
Tentative Ruling for 3/31/20:
Please see the tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 14 (3/31/20 at 11:00 a.m.).
Tentative Ruling for 3/3/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 7 (3/3/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20, 3/3/20
Docket 1
Tentative Ruling for 3/31/20:
Continue to 5/5/20 at 11:00 a.m. pending a decision from the District Court on whether to withdraw the reference. See Joint status report, adv. dkt. 14. The parties are directed to file a joint status report by 4/21/20. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to
dispute the tentative ruling, or further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
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Continue to 3/31/20 at 11:00 a.m. pending a decision from the District Court on whether to withdraw the refence. See Joint status report, adv. dkt. 13.
The parties are directed to file a joint status report by 3/17/20. Appearances are not required on 3/3/20.
If appearances are not required at the start of this tentative ruling but you wish to
dispute the tentative ruling, or further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
11:00 AM
Adv#: 2:19-01181 Elissa D. Miller, Chapter 7 Trustee v. NANO
Recovery of Avoided Transfer [11 U.S.C. section 550]; (4) Declaratory Relief; and (5) Turnover [11 U.S.C. section 542] fr. 8/20/19, 10/29/19, 1/28/20
Docket 1
Tentative Ruling for 3/31/20:
Continue to 6/2/20 at 11:00 a.m. at the request of the parties (see adv. dkt. 9). Appearances are not required on 3/31/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
11:00 AM
Debtor(s):
Rima Adam Nano Represented By
G Marshall Hann
Defendant(s):
ADMON NANO Represented By Gary A Starre
Plaintiff(s):
Elissa D. Miller, Chapter 7 Trustee Represented By
Jeremy Faith Noreen A Madoyan Anna Landa
Trustee(s):
Elissa Miller (TR) Represented By Noreen A Madoyan
11:00 AM
Adv#: 2:19-01491 Lee v. Hsu
fr. 1/28/20
Docket 1
Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
After the 1/28/20 status conference, this Court issued its Order Directing The Parties To Mediation And Setting A Continued Status Conference (the "Scheduling Order," adv. dkt. 4). The Scheduling Order directed the parties to this adversary proceeding to lodge a proposed mediation order on the local form no later than 2/11/20.
On 2/18/20, this Court held a status conference in the related adversary proceeding of Yiping Zhu v. Shih Lin Hsu (2:19-ap-01511-NB, the "Zhu Adversary"). At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his inquiries re selecting a mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," Zhu Adversary,
11:00 AM
adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Zhu Adversary, adv. dkt. 4, p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required.
Preliminary issues
(1) Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
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See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for
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the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Diana C Lee Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01499 Kok v. Hsu
fr. 1/28/20
Docket 1
Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
After the 1/28/20 status conference, this Court issued its Order Directing The Parties To Mediation And Setting A Continued Status Conference (the "Scheduling Order," adv. dkt. 7). The Scheduling Order directed the parties to this adversary proceeding to lodge a proposed mediation order on the local form no later than 2/11/20.
On 2/18/20, this Court held a status conference in the related adversary proceeding of Yiping Zhu v. Shih Lin Hsu (2:19-ap-01511-NB, the "Zhu Adversary"). At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his inquiries re selecting a mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," Zhu Adversary,
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adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Zhu Adversary, adv. dkt. 4, p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required.
Preliminary issues
Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
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See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for
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the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shin Lin Hsu Pro Se
Plaintiff(s):
Ching Chen Kok Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01511 Zhu v. Hsu
Breach of Fiduciary Duty fr. 02/18/20
Docket 1
Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
On 2/18/20, this Court held a status conference in this adversary proceeding. At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his inquiries re selecting mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Adv. dkt. 4,
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p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Appearances required.
Preliminary issues
Status report
This Court issued a summons which required the parties to file a joint status report at least 14 days before the hearing, or by 2/4/20. Adv. dkt. 2,
p.2. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Standard issues
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is
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intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/25/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 12/16/19.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Yiping Zhu Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC ("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to"
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jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows. Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
(1) a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal quotation omitted).]
These elements are satisfied: (1) the motion was timely - the proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14) are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
(1) the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related
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proceeding commenced in state court or other nonbankruptcy court,
the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from
core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
Several of the Tucson factors weigh in favor of abstention. First, the Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
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The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Pro Se
RU, LLC Pro Se
Dos Cabezas Properties, LLC Pro Se Criscione-Meyer Entitlement, LLC Pro Se Michael Criscione Pro Se
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
Docket 7
Please see the tentative ruling for the adversary status conference (Calendar no. 26, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
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Alan M Feld
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Adv#: 2:20-01008 Dos Cabezas Properties, LLC et al v. 110 West Properties, LLC
Docket 3
Please see the tentative ruling for the adversary proceeding (Calendar no. 29, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
Plaintiff(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Michael Meyer Represented By Thomas F Nowland
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Adv#: 2:20-01008 Dos Cabezas Properties, LLC et al v. 110 West Properties, LLC
Docket 1
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding.
Current issues
Debtor/defendant’s motion to dismiss (adv. dkt. 3, "MTD"), Plaintiffs’ opposition (adv. dkt. 7), Debtor/defendant's reply (adv. dkt. 10)
Debtor/defendant seeks dismissal of this proceeding under Rule 12(b)
(6) (Fed. R. Civ. P.) (made applicable by Rule 7012, Fed. R. Bankr. P.).
As to Plaintiffs’ first claim for relief under 11 U.S.C. 523(a)(2)(A), the tentative ruling is to grant the motion and dismiss the claim with prejudice for the reasons stated in the MTD. The tentative ruling is also to deny leave to amend because amendment would be futile.
As to Plaintiffs’ second claim for relief for fraud under CCCP 1572, the tentative ruling is to agree with the argument in the MTD that because the claim does not fall within one of the categories set forth in Rule 7001 (Fed. R. Bankr. P.) the complaint must be dismissed, without leave to amend, but also
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without prejudice to asserting the same or different claims through the normal claims process in bankruptcy matters (and with all rights of Debtor or other parties with standing to object to any such claim).
(2) Status conference issues None.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Pro Se
Plaintiff(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Michael Meyer Represented By Thomas F Nowland
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Docket 5
Tentative Ruling for 3/31/20:
Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash Collateral Motion (dkt. 73)
Grant on a final basis, on the same terms and subject to the same modifications set forth in the interim order authorizing use of cash collateral (dkt. 91).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 6/2/20 at 1:00 p.m. Brief written
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status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor.
Current issues
Cash Collateral Motion (dkt. 73)
Grant in part and deny in part. See the tentative ruling for calendar no.
18.10 (2/18/20 at 1:00 p.m.).
Explanation of business
Debtor's proposed budget (dkt.73, Ex.A) lists wildly fluctuating income, from highs of $45,028 in February 2020 and $37,114 in March 2020 to lows of $2,200 in May and June 2020. Why?
This Court recognizes that the same budget lists historical fluctuations for 2019. The net income ranges from a high of $38,366 in March 2019 to a low of $0 in July and August of 2019, and only $2,500 in June 2019 and
$3,300 in May 2019. Again, however, there is no explanation. In addition, Debtor's Statement Of Financial Affairs (dkt.28, line 1) lists gross revenues of approximately $500,000 per year for 2017, 2018 and 2019. What accounts for (i) the wild fluctuations in net income and (ii) the lack of consistent profit despite substantial and seemingly stable gross annual revenues?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 3/31/20 at 1:00 p.m. No written
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status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Monthly operating reports ("MORs")
Debtor's MORs have been filed late, and they appear to show unauthorized adequate protection payments (see dkt.68, pp.15, 29) and unpaid US Trustee fees (id., p.30). Why?
Cash collateral
Debtor's initial status report (dkt.27, at PDF pp.3-5) stated that there was no immediate need to obtain authorization for use of cash collateral because Debtor has no employees or operations. Debtor's latest status report (dkt.60, p.3:9-20) sugests that productive negotiations have taken place with the creditor holding an interest in cash collateral and that Debtor intends to self-calendar a motion approving the use of cash collateral for 2/4/20. What is the latest status of those matters?
Employing broker and filing sale motion
Debtor is directed to address the status of its plans to employ a real estate broker, sell its properties (11 U.S.C. 363(b) & (f)). Those things typically are "first day" motions. But as of this continued status conference it will have been two months after the petition date and those matters are not
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on the calendar. Why not?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 2/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor (see dkt. 21, excusing debtor's appearance).
Current issues
Has Debtor ceased all operations?
Debtor's status report gives the impression, but does not quite state, that Debtor is not conducting any business operations at this time (dkt. 27, p. 3). Debtor is directed to confirm this, or disclose if that is not so, at the hearing.
Budget motion
Debtor's status report states that a budget motion is not required by the presiding judge's procedures. Dkt. 27, p.5. That is wrong (see posted Procedures, available at cacb.uscourts.gov), but the tentative ruling is to excuse this requirement with a caution to counsel not to mis-state the applicable procedures.
Deadlines/dates. This case was filed on 11/29/19.
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Bar date: 3/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20. Debtor is directed to appear in person, through its designated representative.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
11:00 AM
Docket 73
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 30, 3/31/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
1:00 PM
Docket 1
Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor's principal(s) themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements to appear. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report
Per this Court's scheduling order (dkt. 12), Debtor was required to file a status report no later than 14 days before this hearing (3/17/20). As of the drafting of this tentative ruling, no status report has been filed. Why not?
Debtor's emergency cash collateral motion (dkt. 23)
Grant on a final basis, on the same terms and conditions previously ordered (dkt. 33)
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
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Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C.
Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/12/20 at 1:00 p.m., status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's emergency cash collateral (dkt. 23)
Grant on an interim basis, subject to (i) resolution of certain preliminary issues and (ii) certain conditions, as set forth in calendar no 1, 3/17/20 at 1:30 p.m.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
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Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C.
Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., status report due 3/17/20 per order setting initial status conference (dkt. 12)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
1:00 PM
Docket 23
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 1, 3/31/20 at 1:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 12
Revised Tentative Ruling for 3/31/20:
Grant the motion (docket no. 12) on an interim basis, subject to the following clarifications and conditions, with a final hearing on 4/21/20 at 1:00 p.m., and a deadline of 4/3/20 for the Debtor to file an amended motion and file and serve a notice of the final hearing.
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Service
Debtor's proof of service does not reflect service on PHH Mortgage Corporation or Specialized Loan Servicing in a manner consistent with Rule 7004 (Fed. R. Bankr. P.). Why not?
The tentative ruling is that by the date stated at the start of this tentative ruling Debtor must give notice of the continued hearing and file a proof of service reflecting service as follows (a) on PHH Mortgage at the address listed in its proof of claim (claim no. 2) (which was filed after the date of the motion, but which appears to be the most recent designated address) (see Rule 2002(g), Fed. R. Bankr. P.), and (b) on Specialized Loan Servicing in a manner consistent with Rule 7004(b)(3).
Deviations may not exceed 10%
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Debtor checked the box requesting authority to deviate from the line
item expenses in the proposed budget(s), but did not fill in the percentage of deviation requested. The tentative ruling is that debtor may not deviate from the line items listed in the motion by more than 10%.
Property taxes and insurance
The motion is inconsistent about whether debtor pays monthly property taxes and insurance into an impound account (compare dkt. 12, p. 4, para. 5 with p. 5, para. 1). The tentative ruling is to direct debtor to file an amended motion stating the estimated dollar amount for these items by the date for service of notice of the continued hearing (stated at the start of this tentative ruling).
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain
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current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Grant of, and limitation on, postpetition liens
The tentative ruling is to grant postpetition liens to any creditors holding secured claims by granting replacement liens, but such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition
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date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 12)
Grant the motion on an interim basis, subject to the service deadlines and also to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 2 (3/31/20 at 1:00 p.m.), with a continued hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below).
Utilities motion (dkt. 16), order setting hearing on shortened notice (dkt. 19, "OST"), notice of hearing (dkt. 21), proof of service (dkt. 22)
The first issue that this Court will address is whether to shorten time and why notice could not have been provided sooner.
The second issue that this Court will address is whether, if notice could have been provided sooner, counsel should not charge anything for the Application and related matters.
If this Court is persauded to shorten time, then subject to any opposition at the hearing, the tentative ruling is to grant this motion on an interim basis, with a final hearing concurrent with the continued status
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conference (see part "(2)" below).
Application to employ Anyama Law Firm (dkt. 11)
Ms. Anyama and Debtor state that Ms. Anyama's firm received an
$8,233 pre-petition retainer payment, which was a gift from Debtor's family (dkt. 11, p.6, para. 3.a.1 & p. 8) (actually, Ms. Anyama's firm received
$10,000 including the filing fee, id., Ex.2, p.2).
The contribution from family members raises certain ethical issues because a third party who funds a retainer for a debtor (a "Funder") may have a variety of motivations for providing the funding such as, for example, being the recipient of an avoidable preference, or otherwise having interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a Funder is not outright prohibited, it is fraught with ethical concerns. At the hearing, proposed counsel should be prepared to address the following.
Connections. What are all of the connections between the Funder, on the one hand, and Debtor, Debtor's proposed counsel, and any of the other types of persons listed in FRBP 2014, on the other hand -- e.g., have there been any economic or business or personal connections between the Funder and Debtor, beyond the fact of being a family member, or between the Funder and proposed counsel, or any creditor or other party in interest, or their respective attorneys or accountants? These questions may be answered, if appropriate, by referring to specific disclosures already on file, e.g., the bankruptcy schedules.
Terms. The Application and Debtor's declaration assert that the funds were to be treated as a gift, but there is no evidence to support that assertion (e.g., declaration(s) from the Funder).
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and taht the sole attorney- client relationship and duty of loyalty is with Debtor, not the Funder? Who provided such advice: independent counsel, or Debtor's proposed counsel (and if the latter, was each Funder given the opportunity to obtain independent counsel)? Has the Funder given informed consent? Are these things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
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Other considerations. Has proposed counsel demonstrated to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Ms. Anyama seeks authority to charge $150/hour for paralegal services, but the application is not supported by a resume or any other qualifications from her paralegal to justify that hourly rate.
The tentative ruling is to set a deadline of 4/3/20 for Debtor to file supplemental declarations addressing the issues set forth above, and to continue this matter to be concurrent with the continued status conference (see part "(2)" below).
Schedules I and J are deficient
Debtor's status report (dkt. 15, p. 5, para.1) states that she intends to assume a residential lease of her rental property, but Debtor's Schedule I (line 8a and passim) does not reflect any rental income or attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income. Additionally, Debtor's Schedule J does not reflect the first and second mortgage payments for the rental property or any other expenses such as real property taxes, insurance, and maintenance.
The tentative ruling is that Debtor is directed to file amended schedules by 4/3/20.
Budget motion
Debtor's status report (dkt. 15) states that she "will file a budget motion on or before" [presumably the status conference]. As of the preparation of this tentative ruling, no budget motion is on file. Judge Bason's posted procedures (available at www.cacb.uscourts.gov) Section VII.G provide that budget motions are mandatory in all chapter 11 cases. The tentative ruling is to set a deadline of 4/3/20 to file and serve a budget motion with a hearing set on shortened time to be concurrent with the continued status conference (see part "(2)" below), oppositions due 4/14/20, and replies at the hearing.
Service of order setting principal status conference
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This Court's order setting principal status conference (dkt. 5,
"Procedures Order") required Debtor to serve this order on all parties in interest by 2/29/20 and file a proof of service at least 14 days before the principal status confernce. On 3/18/20 debtor's counsel belatedly filed a declaration (dkt. 18) stating that she served the order, but does not state when service occurred or why she could not file her declaration by the 3/17/20 filing deadline. Was the procedures order timely served? The tentative ruling is to set a deadline of 4/3/20 for Debtor to file an amended proof of service.
Monthly operating reports ("MORs")
As of the preparation of this tentative ruling, Debtor's February MOR was overdue. When will the MOR be filed? The tentative ruling is to set a deadline of 4/3/20 to do so.
Should this case remain in chapter 11?
Debtor's status report (dkt. 15) states that she filed this case to address pre-petition arrears on a rental property. Debtor should be prepared to address why this case was filed as a chapter 11 case rather than a chapter 13 case.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (see section 1(f), above)
Plan/Disclosure Statement*: file by 6/24/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/21/20 at 1:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 16
Please see the tentative ruling for the status conference (Calendar no. 3, 3/31/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 122
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 49
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/10/20:
Appearances required.
Current issues
Debtor's amendment of bankruptcy petition to elect Subchapter V (dkt. 128)
On 3/2/20, Debtor amended her petition to elect Subchapter V. The
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parties should be prepared to discuss the effect of that amendment, including any appropriate dates and deadlines for such matters as the appointment of a Subchapter V trustee, the filing of an amended plan, and any other applicable procedures that this Court may need to set at this time.
No discernable progress since last hearing
The docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case. Given the short time since the last hearing, the tentative ruling is that this Court will not take any action based on that lack of discernable progress, but to remind Debtor to be cognizant of the warnings that this Court set forth on the record at the last hearing.
No corrected MOR
Debtor has not corrected the monthly operating report, which was not filed on the required form. See tentative ruling for 3/3/20 (reproduced below), item "(1)" "(b)". Why not?
No statement reflecting apparent increase in income?
Despite two reminders, Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Rulings for 3/10/20 and 2/18/20 (reproduced below). Why not?
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94), Debtor's reply (dkt. 134), interim order (dkt.113)
Although this Court has concerns about whether Debtor's financial disclosures are accurate and complete (as set forth in various portions of this tentative ruling and prior tentative rulings), the proposed use of funds in the budget motion appears to be appopriate. Accordingly, the tentative ruling is to grant the motion on a final basis, subject to the following.
First, any approval is subject possible reconsideration once Debtor finally files her statement of postpetition income and expenses, and files the other documents directed by this Court (see dkt.133), or as other facts may come to light. Second, the budget must be adjusted to accommodate the request of East West Bank for Debtor to increase her proposed monthly mortgage payment to $5,643.86, which Debtor has agreed to do (dkt. 134). Third, any approval is subject to the parties' rights to seek further relief,
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including approval of any stipulation for adequate protection.
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on a final basis, on the same terms as stated in the order (dkt.114) granting the motion on an interim basis, and subject to the same caveats and conditions as set forth above regarding the budget motion.
Application to employ The Orantes Law Firm (the "Firm") (dkt. 72); statement of disinterestedness (dkt. 73); amended statement of disinterestedness (dkt. 82); Dec re non-opp (dkt. 98); order setting matter for hearing (dkt. 101)
The tentative ruling is to grant the application in part and deny it in part as follows.
Debtor seeks to employ the Firm pursuant to 11 U.S.C. 327, with compensation pursuant to 11 U.S.C. 330 at the following hourly rates for the Firm's attorneys: Giovanni Orantes: $695 and Luis A. Solorzano: $350 (dkt. 72, p.16). In determining the reasonableness of the proposed billing rates, 11 USC 330(a)(3)(B), (E) and (F) require this Court to consider, among other things, proposed counsel's hourly rates, any board certification or other demonstrated skill and experience in the bankruptcy field, and "the customary compensation charged by comparably skilled practitioners "
Based on a review of rates charged by other bankruptcy professionals practicing before this Court as well as this Court's familiarity with proposed counsel's skills and performance in pending and past cases before it, the tentative ruling is to approve the Firm's employment, subject to Judge Bason's standard employment terms (available at www.cacb.uscourts.gov), but reduce the hourly rates that the Firm may charge to the following maximum dollar amounts, without in any way limiting the requirement that any rates charged and time spent still must be fully justified: Giovanni Orantes:
$475/hour and Luis A. Solorzano: $250/hour.
In addition, the tentative ruling is that any waiver of conflicts of interest is ineffective as against the bankruptcy estate. (A "debtor in possession," acting as a trustee for the benefit of creditors, cannot waive conflicts on behalf of those creditors.)
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative
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ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The tentative ruling is to continue this matter again, to be concurrent with the continued status conference (see below), so as to be able to assess
whether Debtor has adequately prosecuted this case, including selling or refinancing one or more properties (if that is realistic) or otherwise demonstrating progress that has been sorely lacking to date, and (ii) Debtor's papers regarding her non-debtor husband's finances, which are due 3/18/20. See Order (dkt.133).
Meanwhile, the parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
Debtor's Bankruptcy Schedules I and J provide very little information about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true
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situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
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$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with
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other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 12
Please see the tentative ruling for the status conferenc (Calendar no. 7, 3/31/20 at 1:00 p.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
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Docket 1
Tentative Ruling for 3/31/20:
Continue as set forth below. Appearances are not required on 3/31/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Application to employ Weintraub & Selth, APC (the "Firm," dkt. 12), statement of disinterestedness (dkt. 53), order setting hearing and requiring supplemental disclosures (dkt. 61), declarations of Daniel J. Weintraub, Eric Ashenberg, and Linda He (dkt. 74), UST's response (dkt. 75)
Based on this Court's review of the supplemental declarations, the tentative ruling is to grant the motion and authorize the Firm's employment, subject to Judge Bason's standard employment provisions (see www.cacb.uscourts.gov).
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
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Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representation in its status report that it will pursue a sale of all or substantially all of its assets (dkt. 80).
Continued status conference: 4/21/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Appearances required by counsel for Debtor (as orally ruled at the last status conference, Debtor's principals need not appear because they appeared at that status conference).
Current issues
Cash collateral motion (dkt. 19), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24), interim order (dkt. 39).
There is no tentative ruling, the parties should be prepared to update this Court on whether JPMorgan Chase and Fundation Group will consent to the use of their cash collateral.
Utility motion (dkt. 21), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24),no opposition is on file.
Grant the utility motion on a final basis.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the
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hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Service of order setting principal status conference
This Court's order setting principal status conference and setting various procedures (the "Procedures Order," dkt. 5) required Debtor to serve that order on all parties in interest and file a proof of service at least 14 days before the principal status conference. Debtor's proof of service states that the Procedures Order was only served on the UST, secured creditors and the twenty largest unsecured creditors (dkt. 11).
The tentative ruling is to set a deadline of 2/7/20 for Debtor to file and serve a Notice, with a copy of the Procedures Order attached as an exhibit, informing all parties in interest that "Debtor failed to serve the Procedures Order on all parties in interest as directed by the Bankruptcy Court, which may have prejudiced some parties. The Bankruptcy Court has directed Debtor to serve this Notice, with a copy of the Procedures Order, on all parties in interest, both to inform all parties of the procedures in the Procedures Order and so that any party who was prejudiced by the lack of earlier service has an opportunity to seek any appropriate relief."
In addition, Debtor is cautioned that failure to comply with this Court's orders may result in adverse consequences.
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (see section "(1)(c)" above).
Plan/Disclosure Statement*: file by 5/15/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address whether this Court should grant the relief requested in Debtor's emergency first-day motions (dkt. 19, 20, 21, 23, 25 & 26) and this Court's "Order Granting Oral Request for Emergency Hearing Pursuant to Local Bankruptcy Rule 9075-1(a) and Setting Hearing on Shortened Notice" (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
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LE ELEGANT BATH, INC.
vs DEBTOR
Docket 33
Grant as set forth below, subject to jointly administered debtors' limited non- opposition (dkt. 38). Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Jointly administered debtors' limited non-opposition (dkt. 38). As of the preparation of this tentative ruling, no reply is on file
Requested relief
Debtors' non-opposition consents to the relief requested in the motion, which includes (i) relief in this case to continue their litigation in the State
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Courts, and (ii) that such relief continue for 180 days notwithstanding any future bankruptcy filing by any person or entity. Debtors request (a) that their review and approval/consent as to the form of order be obtained, (b) that entry of the order not prejudice their lien avoidance rights, and (c) that their consent not be deemed as an admission of any of the allegations of bad faith contained in the motion.
The tentative ruling is to grant each of Debtors' requested conditions (provided that, if they do not consent to the form of order, then both Movant and Debtors must file their own proposed form of order and may (if necessary) file a short declaration and/or brief explaining why they did not agree to one another's proposed form of order.
Limitations on relief in this case
Limited relief. Modify and condition the automatic stay under 11
U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtors' bankruptcy estates - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtors as to any property that is not property of the respective bankruptcy estates. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending
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bankruptcy cases beyond these three jointly administered cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
In limiting the nonbankruptcy litigation as set forth above, this Bankruptcy Court emphasizes that it does not seek in any way to impinge on the authority of the Nonbankruptcy Courts presiding over the nonbankruptcy action. Rather, this Bankruptcy Court takes seriously its obligations, as a subordinate unit of the District Court, to manage this bankruptcy case. Those obligations include taking into consideration the interests of creditors (who are not parties to the underlying nonbankruptcy litigation), and preserving the bankruptcy estate by placing limits on any relief from the automatic stay that Congress has mandated (11 U.S.C. 362(a) & (d)).
relief
Relief notwithstanding future bankruptcy cases: 180 day in rem
Because this type of relief potentially affects third parties - not just
Debtors who have filed their consent - the tentative ruling is to grant such relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr.
C.D. Cal. 2017) regarding the grounds for relief beyond 11 U.C.S. 362(d)(4), provided that, with respect to any property owned in whole or in part by any of Debtors, such in rem relief in only effective if the order is recorded, as follows:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in any item of property of the bankruptcy estate, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within 180 days after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen
Movant(s):
Le Elegant Bath, Inc. Represented By
D Edward Hays
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Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances are not required on 3/31/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion(s)
Debtor Anthony Chan's status report (dkt. 39) states that a budget motion is forthcoming, but as of the preparation of this tentative ruling no motion is on file for any of the jointly administered Debtors. Judge Bason's posted procedures (available at www.cacb.uscourts.gov) Section VII.G provide that budget motions are mandatory in all chapter 11 cases.
The tentative ruling is to set a deadline of 4/7/20 to file and serve budget motion(s) for all Debtors who currently have or anticipate any cash flow, with a hearing set on shortened time concurrent with the continued status conference (see part "(2)" of this tentative ruling, below), oppositions due 4/14/20, and replies at the hearing.
Monthly operating reports ("MORs")
Debtor Anthony Chan's February MOR reflects only a single deposit of
$2,634.57 for a period covering 2/7/20 - 2/29/20. Is Debtor not paying his debts as they come due? How is Debtor paying ordinary and necessary
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expenses such as for groceries, transportation, or his mortgage?
Debtor A Touch of Brass, Inc.'s February MOR (Case No. 2:20-
bk-11555-NB, dkt. 68, p.11) appears to show a negative balance in Debtor's general account (id., p.1) and reveals that Debtor has not made postpetition payments to "CNC Associates" or "Toyota Financial Services" in an amount totaling $26,018.86. What is Debtor's financial viability, what is the nature of the missed postpetition payments, and how does its inability to pay these debts impact its ability to reorganize? Why is Debtor mailing its MOR to all creditors (presumably at the estate's expense)?
The tentative ruling is to set a deadline of 4/7/20 for Debtor to file (not serve) amended February MORs and/or delcaration(s) that address these issues.
Order assigning matter to mediation
Debtor's status report states that the jointly administered debtors and Elegant scheduled a mediation for 4/7/20, but anticipate seeking to extend that date by 45 days (dkt. 39). The tentative ruling is to grant that extension, or any extension of approximately that duration if stipulated to by the parties.
Meanwhile, however, at the last status conference this Court set a deadline of 3/17/20 for Debtor to lodge a proposed order assigning the matter to mediation. As of the preparation of this tentative ruling, no order has been lodged.
The tentative ruling is to excuse that omission, on a one-time basis, but to direct Debtors and all other parties that they must lodge proposed mediation order(s) no later than 4/7/20 or else face possible sanctions or other remedies for noncompliance.
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/21/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of activity on the docket
This case was filed on 2/7/20 and as of the preparation of this tentative ruling there is very little activity on the docket. There are no "first day" motions such as the cash collateral motion, a budget motion, and the application to employ counsel that Debtor anticipated filing (see Status Report, dkt.18, p.3). Apparently Debtor has either been using cash without authority, or failing to use cash for ordinary and necessary expenses, both of which are bad.
What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Debtor's ex parte motion for joint administration (dkt. 19); oppositions by Le Elegant Bath, Inc. ("Elegant") (dkt. 23) and United States Trustee ("UST") (dkt.27)
Debtor filed an ex parte request for this Court to jointly administer his case with two related cases: A Touch of Brass ("Brass") (2:20-bk-11555-NB) and AC YU Chan Holdings LLC ("Holdings") (2:20-bk-11476-NB). Elegant opposes joint administration to the extent Debtor seeks relief greater than consolidating filings onto one docket and the UST similarly objects to any financial reporting that does not keep the estates separate, as well as any consolidated billing for professional fees and costs. The parties are directed to address whether this Court should set this matter for hearing or,
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alternatively, grant joint administration but without combining any financial reporting or professional billing.
Mediation
The tentative ruling is to order Debtor, Elegant, and related debtors Brass and Holdings to mediation before one of the volunteer mediators (not a Bankruptcy Judge) and set a deadline of 3/17/20 for Debtor to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden
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Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances are not required.
Current issues
This case is being jointly administered with In re Anthony Chan (Case No. 2:20-bk-11409-NB), so the tentative ruling is not to hold any separate status conferences in this case unless and until further ordered by this Court.
Deadlines/dates
This case was filed on 2/10/20.
Bar date: 5/5/20 (dkt. 16; timely served, dkt. 17)
Procedures order: dkt.7 (timely served, dkt. 9)
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
This case was filed on 2/10/20 and as of the preparation of this tentative ruling there is very little activity on the docket. There are no "first day" motions such as the cash collateral motion, a budget motion, and the application to employ counsel that Debtor anticipated filing (see Status Report, dkt.14, p.3). Apparently Debtor has either been using cash without authority, or failing to use cash for ordinary and necessary expenses, both of which are bad.
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What assurances can Debtor and Debtor's counsel provide parties in
interest and this Court that this case will be adequately prosecuted?
Mediation
The tentative ruling is to order debtor to attend mediation as set forth in more detail in the status conference for related debtor, Anthony Chan (Calendar no. 1, 3/3/20 at 1:00 p.m.).
Deadlines/dates. This case was filed on 2/10/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.7 (timely served, dkt. 9)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
AC YU CHAN HOLDING, LLC Represented By
Jeffrey I Golden
1:00 PM
Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances are not required.
Current issues
This case is being jointly administered with In re Anthony Chan (Case No. 2:20-bk-11409-NB), so the tentative ruling is not to hold any separate status conferences in this case unless and until further ordered by this Court.
Deadlines/dates
This case was filed on 2/10/20.
Bar date: 5/5/20 5/5/20 (dkt. 50; timely served, dkt. 60)
Procedures order: dkt.3 (timely served, dkt. 5)
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Debtor's Utility Motion (dkt. 10), no opposition is on file
Grant on a final basis, on the same terms as the interim order (dkt.38).
Debtor's Cash Collateral Motion (dkt. 11, 19), opposition of Le Elegant Bath, Inc. ("Elegant") (dkt. 47), Debtor's reply (dkt. 49)
This Court is mindful of the concerns raised by Elegant, including the findings of fact and conclusions of law by the State Court including on alter ego liability, and bearing on the related Debtors' alleged transfers of assets,
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lack of truthfulness, and delay. The tentative ruling is that those things are part of the totality of the circumstances that this Court may consider in various possible future contexts, but that for present purposes they are not sufficient to warrant denial of further interim relief regarding the use of cash collateral.
Grant on a further interim basis, on the same conditions set forth in the first interim order authorizing debtor's use of cash collateral (dkt. 37), with the requested 15% variances (dkt.49, p.2:4-8), through the conclusion of a continued hearing commencing on 6/2/20 at 1:00 p.m. The last two days of this period extend beyond Debtor's proposed cash collateral budget (dkt.11, Ex.2, at PDF pp.50-58), so the tentative ruling is to authorize expenditures for the week of 5/31/20 through 6/6/20 identical to the authorized expenditures covering the first day of the previous month (4/26/20 through 5/2/20). Id. at PDF pp.55-56.
Mediation
The tentative ruling is to order debtor to attend mediation as set forth in more detail in the status conference for related debtor, Anthony Chan (Calendar no. 1, 3/3/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on the above matters (2)-(4), via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/10/20.
Bar date: 5/5/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.20 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Proofs of service re orders shortening time
This Court's orders shortening time (dkt. 13-15) directed Debtor to file a proof of service evidencing service of those orders no later than 2/13/20 at 5:00 p.m. As of the drafting of this tenative ruling, no such proofs of service have been filed.
Debtor is directed to address whether the three motions discussed below were timely served.
Debtor's Utility Motion (dkt. 10)
Grant, subject to any opposition at the hearing and to resolution of the service issues described above.
Debtor's Cash Collateral Motion (dkt. 11, 19)
Grant on an interim basis, on the conditions set forth in calendar no.
27, 2/18/20 at 1:00 p.m., subject to any opposition at the hearing, and subject to resolution of the service issues described above. A continued hearing will be held contemporaneous with the continued status conference (see below).
Debtor's Wage Motion (dkt. 12)
Grant, subject to any opposition at the hearing, and subject to resolution of the service issues described above.
Continued status conference
As set forth in this Court's Order Setting (A) Principal Status Conference And (B) Procedures, a continued status conference, which will be the principal status conferece, will taken place on 3/3/20 at 1:00 p.m.
Proposed orders: Movant is directed to lodge proposed orders on the above matters (2)-(4), via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
1:00 PM
Docket 247
Please see the tentative ruling for the status conference (Calendar no. 13, 3/31/20 at 1:00 p.m.).
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
Movant(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
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4/22/19, 5/14/19, 6/11/19, 7/30/19, 9/24/19, 10/15/19,
11/12/19, 12/17/19, 2/4/20, 3/3/20
Docket 1
Tentative Ruling for 3/31/20:
Continue as set forth below. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Reorganized debtor's motion to disallow proof of claim 15 (dkt. 247), amended proof of service (dkt. 262), no opposition is on file
The tentative ruling is to grant the motion and disallow Claim 15 in full.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/25/19. A Plan (dkt. 208) was confirmed 12/17/19 (dkt. 232). A continued post-confirmation status conference is set for 9/29/20 at 1:00 p.m. Brief status report due 9/15/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 1/25/19. A Plan (dkt. 208) was confirmed 12/17/19 (dkt. 232). A continued post-confirmation status conference is set for 3/31/20 at 1:00 p.m., to be concurrent with other matters. No written status report required. Note: If the other matters on 3/31/20 are continued, this Court likely will order a further continuance of this status conference, based on part on Debtor's request for a continuance of at least six months. See Status Report (dkt.258).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
1:00 PM
Docket 51
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 15, 3/31/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Continued hearing on interim collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113), Hanmi's supplemental statement (dkt. 104)
There is no tentative ruling. The parties should be prepared to address whether Hanmi will consent to further use of its cash collateral.
Untimely status report
At the last hearing, this Court set a 3/20/20 deadline for Debtor to file a status report. Debtor did not file its status report until 3/25/20 and did not provide any explanation for the delay (dkt. 117).
This Court presumes that the delay might have been caused by early disruptions attributable to the very unfortunate COVID-19 situation. That situation cuts both ways. On the one hand, the present situation might be a valid excuse for Debtor being late. On the other hand, it is all the more
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difficult for parties in interest and this Court to perform their functions when any party misses its deadlines.
This Court reminds all parties of the inconvenience to others when deadlines are not met, and the requirement to explain any failure to do so. Most of all, of course, this Court fervently wishes the best for all parties.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 8/14/20 (dkt. 78)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 5/2/20 at 1:00 p.m., Brief written status report due 4/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m., concurrent with other matters, with a further status conference likely to be scheduled for 6/2/20 at 1:00 p.m., based on this Court's review of Debtor's status report (dkt. 90). Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
1:00 PM
John N Tedford IV George E Schulman
1:00 PM
fr. 02/18/20
Docket 55
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 18, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 9, 2/18/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Despite repeated inquiries from this Court, the docket does not appear to reflect adequate prosecution of this case. To the contrary, the docket and records of this Court appear to reflect considerable mismanagement, lack of disclosure, and other problems set forth below.
Rental income, and disposition or use of various properties
At the hearing on 2/18/20 Debtor belatedly clarified that the second cash collateral motion (dkt.55) was meant to amend the first such motion, and that only one property currently is generating rents - the 69th Way property - although perhaps a second property generates some rents that are not anyone's cash collateral (as noted below). As for Debtor's properties other than 69th Way, Debtor apparently intends to sell the Shadow Ln. property (dkt.89), and it is unclear what Debtor intends to do with the 68th Way property, the Anderson St. property, and the 132d St. property, which appear to be generating minimal if any rental income. See, e.g., Status Report (dkt.69) (listing properties, but not addressing Debtor's intent regarding any of
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them).
The latest MOR (#4, for Feb. 2020) is unclear about which rental
account relates to which property. But it appears that, apart from 69th Way, only one other property has an ending balance above $0, and that is minimal (this unspecified property is the other one that appears to generate some rent, that apparently is not anyone's cash collateral, although that is unclear). See dkt.85, p.18.
In addition, it appears that Debtor's actual rent rolls might differ from what has been disclosed to date. See dkt.86, p.5:11-15, and supporting decl.
With this background, this Court's primary concern is why the docket does not reflect steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties (other than Shadow Ln.)? This Court's secondary concern is to obtain much more complete and clear information and explanations regarding Debtor's various properties.
Debtor's lack of disclosure to date only encourages this Court to impose more comprehensive disclosure requirements, or possibly other remedies. If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) the tentative ruling is to set a deadline of 4/7/20 for Debtor to file and serve on Aztec and the United States Trustee ("UST") a declaration specifying:
exactly what is the current condition of each property;
how much each apartment or room in that property (a "Unit") has been rented for at all prepetition times back to 1/1/17;
how much each Unit has been rented for at all postpetition times, and whether each Unit has been used or occupied by any relative or other affiliate of Debtor at any times postpetition;
Debtor's projections for each Unit, including the timing and dollar amount of all future rents;
Debtor's proposed disposition of each property;
all steps that Debtor has taken since the commencement of this case to accomplish that disposition; and
the projected timeline for such disposition.
Debtor's amended cash collateral motion (dkt. 55), opposition of Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") (dkt. 70, 86 & 88), and Debtor's reply (dkt. 90)
Aztec values the property at $860,000 "as is" as of 2/23/20. Dkt. 88,
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p.2:2-3, dkt.91. Debtor requests time to obtain a competing appraisal. Dkt. 90, p.2:13. Why did Debtor not do this already?
If there is a satisfactory answer, and if Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to grant the cash collateral motion on a further interim basis, on the same terms as this Court's previous interim order (dkt. 80), and to set a continued hearing for the same date and time as the continued status conference as set forth below with a deadline of 4/25/20 for Debtor's appraisal to be filed and served on Aztec.
At the continued hearing the parties should address how they propose to resolve their dispute regarding the value of the property - e.g., (i) with an evidentiary hearing; (ii) with a ruling of this Court based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as this Court's own expert under FRE 706.
February MOR (dkt. 85)
Insurance
This MOR (dkt. 85, p.17) shows general liability insurance is due to expire/only paid through 1/25/20. Has that insurance been extended?
This is the same problem that occurred and has been pointed out before. Why is this problem continuing?
This Court fully understands that the insurance is month-to-month, according to Debtor's counsel. But that is no excuse. By the due date of each MOR is should be apparent whether the insurance has or has not been continued, so why do the MORs continue to suggest - apparently inaccurately - that the insurance has expired? Alternatively, if the insurance really has expired, what consequence should follow?
Even if Debtor is (barely) current on insurance, this Court questions whether there is a danger every month that the insurance will expire, if the insurance is only month-to-month. How is Aztec, the bankruptcy estate, or the public adequately protected?
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to set a deadline of 4/7/20 for Debtor to file, and serve on Aztec and the UST, a declaration fully addressing the foregoing insurance issues.
No blocked account
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Aztec's supplemental opposition (dkt. 86, p.9:1-9) states that Debtor's MOR appears to reflect that there is no separate blocked account for Aztec's cash collateral, as was required by this Court's interim order (see dkt. 80, p.3). The rental DIP account ending in 2707 appears to be related to Aztec's property based on the $5,390.00 of receipts for February (dkt. 85, p.5), and Debtor's representation at the last hearing that the 69th Way property is the only property generating rents at this time. Debtor's reply states that he has complied with this Court's order "by setting aside one of debtor in possession accounts as an escrow account for the remaining portion of the rents." Dkt. 90, 4:1-2.
One problem, as noted above, is that it is not clear which account Debtor is referring to (the one ending in 2707?). Another problem is that the MOR appears to show rental income going into that account but does not appear to show payments of "real estate taxes," "utilities," and "essential repairs" out of that account (only insurance appears to have been paid out of that account). See dkt.85, p.6. It appears that utilities, for example, have been paid from the general account. See dkt.85, pp.1-3. This creates a falsely inflated balance in that account.
More importantly, Debtor appears to misunderstand the nature of a "blocked account." In common usage, and as used by this Court, it means an account from which funds cannot be released without either (i) consent of the other party asserting an interest in the account (Aztec) or (ii) an order of this Court. See, e.g., In re Estrada, 224 B.R. 132, 134 (Bankr. S.D. Cal. 1988) (referring to a "blocked account, requiring both the [chapter 7] trustee's and the Debtor's signature for any disbursements").
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) then, no later than 4/7/20, Debtor is directed to accomplish all of the following:
coordinate with Aztec and Debtor's bank to determine the mechanics of how checks will be signed by both Debtor and Aztec so as to pay utilities etc. (or whether automatic payments will be set up);
actually set up the blocked account and implement those procedures; and
file and serve on Aztec and the UST a declaration confirming that the blocked account has been established and those procedures have been implemented.
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Belated application to employ special counsel (dkt. 57, filed
1/17/20), who has not been approved but has already filed an adversary proceeding (Lora v. Rehabbers Fin., Inc. dba Aztec Fin., et al., Adv. No. 2:20- ap-01067-NB)
The bankruptcy petition was filed on 11/11/19. Over two months later, on 1/17/20, Debtor belatedly filed an application to employ special counsel.
That proposed special counsel apparently represented Debtor in prepetition litigation in State Court (LA Superior Court, Case No.
19LBCV00600, for fraud, quiet title, etc.). Dkt.57, p.5. There is no meaningful description of that litigation in the application, nor does the application say anything about commencing a separate adversary proceeding in this bankruptcy case, as the (still unauthorized) special counsel has done on 3/20/20 (dkt.87).
As set forth in prior tentative rulings, reproduced below (for 2/18/20, item "(1)(c)," and 1/14/20, item "(1)(c)"), this Court is very concerned that Debtor is gambling any possible recovery for creditors on the possibility of prevailing in litigation against Aztec. That litigation should have been fully described in Debtor's initial status report and any later reports (dkt. 30, 69), and also should have been fully described in the (very belated) application to employ proposed special counsel (dkt.57). Instead, the nature of that litigation has only been incompletely and belatedly disclosed in those documents (see, e.g., dkt.30 at PDF p.3, and dkt.57, p.5), and orally at prior status conferences.
As near as this Court can tell, based on those sources and this Court's review of the Complaint (Adv. dkt. 1), Debtor's claims are as follows. Debtor apparently is attempting to reduce or eliminate the principal and/or interest, including default interest, on Aztec's secured claim collateralized by the 69th Way and Shadow Ln. properties. Although Debtor admits receiving the loan proceeds, and using some or all of the proceeds to purchase the Shadow Ln property, Debtor allegedly attempted to cancel both the purchase and the loan on or about 6/8/18. Id., para.16 & Ex.C at PDF pp.4 & 107-08. But then on or about 6/11/18 Debtor and his wife allegedly were pressured and intimidated into executing various documents that they did not understand that reauthorized the transaction, including cross-collateralization (id., para.17), and their signatures allegedly were forged on a closing statement listing various high transaction costs (id., para.18, 26). Debtor's Complaint appears to assert claims for fraud, usury, a determination that some or all of
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these transactions are void and unenforceable, and damages of an unspecified nature up to or in excess of $1 million. It is unclear how much this adversary proceeding duplicates or is different from the State Court litigation.
This Court expresses no view on the merits of these two actions (in State Court, and in the adversary proceeding in this Bankruptcy Court). The point is only that pursuing such litigation is all very well for this bankruptcy estate if Debtor prevails, but Debtor has a duty, as a debtor in possession acting as a trustee for the benefit of creditors (11 U.S.C. 1101(1), 1106, 1107), to consider a cost/benefit analysis of the litigation, and how to minimize the "down side" risk if Debtor does not prevail.
As this Court has noted previously, the default rate of interest (and even the non-default rate) are large enough that they may eat up any assets of this estate if they continue to accrue and are not disallowed. This Court previously has questioned why Debtor has not been pursuing avenues that might possibly stop the accrual of such interest.
Such avenues conceivably could include such tactics as:
selling the 69th Way and/or Shadow Ln. properties free and clear of liens with Aztec's liens to attach to the proceeds of sale (11 U.S.C. 363(b)&(f));
selling those properties with the net proceeds being paid over to Aztec subject to claims to recover those proceeds;
pursuing confirmation of a chapter 11 plan that pays Aztec over time with a new (much reduced) interest rate; or
some other tactic.
To be clear, this Court expresses no view whether those things actually would work to stop the running of default interest - this Court is not pre- judging any legal or factual issues. The point is only that only last week, on 3/23/20, did Debtor finally appear to take some preliminary steps to possibly addressing this issue, by filing an application (dkt.89) to employ a real estate broker to sell the Shadow Ln. property. Now, with the possible effects of the COVID-19 pandemic on the real estate market, it appears that this is too little, too late.
Meanwhile, Debtor does not appear to have taken any steps to obtain approval for the employment of special counsel, such as setting the matter for hearing or lodging a proposed order. It is also unclear what, if anything, is happening in the pending State Court litigation - is Debtor taking whatever
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steps are necessary to preserve whatever value that litigation has for the estate?
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this part "(1)(d)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Whether this case should be converted or dismissed, or whether a trustee should be appointed, or other relief
Based on the matters described above, and the history of this case as described in the prior tentative rulings reproduced below, this Court questions:
whether Debtor is grossly mismanaging this bankruptcy estate (sub-paragraph "(B)" of 11 U.S.C. 1104(a)(1), 1112(b)(4)) by:
not taking appropriate steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties;
not adequately disclosing the past, present, and projected condition, rents, and proposed disposition of those properties;
not maintaining and/or timely disclosing adequate
insurance;
not maintaining a blocked account for cash collateral
as order by this Court;
not seeking authorization for the employment of special counsel to prosecute litigation against secured creditor Aztec until over two months after the commencement of this case;
not requesting adequate authorization for that proposed special counsel: the application seeks authorization for him to prosecute the State Court litigation against Aztec, but not any litigation in this Bankruptcy Court with Aztec;
failing to monitor and coordinate with such special counsel, as illustrated by (x) such proposed counsel's filing of an adversary proceeding against Aztec on behalf of this bankruptcy estate before such special counsel is authorized to represent this estate, and (y) the apparent
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lack of attention to the State Court litigation against Aztec; and
perhaps most importantly, not taking any steps to stop the running of the high rates of Aztec's claimed interest, despite repeated questioning by this Court why no such steps have been taken, until the application to employ a real estate broker on 3/23/20, which appears to be too little, too late;
whether Debtor is failing to maintain appropriate insurance that posses a risk to the state or to the public (sub-paragraph "(C)" of section 1112(b)(4));
whether Debtor has engaged in the unauthorized use of cash collateral substantially harmful to Aztec, or has failed to comply with this Court's order regarding the use of cash collateral and establishment of a blocked account (id., sub-paragraphs "(D)" and "(E)");
whether Debtor is failing, without excuse, to satisfy timely the filing or reporting requirements established by the Bankruptcy Code and Rules or reasonably requested by the United States Trustee regarding the filing of MORs and maintenance of insurance (id., sub-paragraphs "(F)" & "(H)"); or
whether there is other "cause" for conversion, dismissal, or appointment of a chapter 11 trustee (11 U.S.C. 1104(a), 1112(b)(1)), or any other remedy for the foregoing deficiencies.
Debtor is directed to address these issues at this status conference.
See Procedures Order (dkt.8, 29) (notice and order that this Court may consider case-dispositve matters at any status conference).
If this Court is persuaded not to convert or dismiss this case or impose other remedies at this hearing, the tentative ruling is to issue an oral Order to Show Cause ("OSC") why this case should not be converted or dismissed, or why a trustee should not be appointed, or other remedies imposed, and set that OSC for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this part "(1)(e)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
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Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 5/5/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
First cash collateral motion (dkt.31&32) and second cash collateral motion (dkt. 55&56)
Applicable motion(s)?
At the 1/14/20 hearing, Debtor was directed to re-serve the first cash collateral motion no later than 1/16/20 (see also Tentative Ruling for 1/14/20, reproduced below). Instead, Debtor filed and served the second cash collateral motion, which differs materially from the first cash collateral motion.
It appears that Debtor still may be seeking authorization under the first motion as to two properties (68th Way and Shadow Ln) and authorization under the second motion as to a third property (69th Way). Is that accurate? If not, what is Debtor attempting to do?
Service issues
At the 1/14/20 hearing, this Court noted that the first cash collateral
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motion was not served in compliance with Rule 7004 (Fed. R. Bankr. P.), and Debtor was directed to reserve that motion no later than 1/16/20. Debtor served the second cash collateral motion instead, and did so on 1/17/20. Dkt. 56.
It appears that Debtor has still not complied with Rule 7004. First, Nationstar Mortgage, LLC dba Mr. Cooper was not served at the address listed on POC No. 4 for notices. Second, CitiMortgage, Inc. filed POC No. 5 alleging a security interest in the 68th Way property, and it was not served with either cash collateral motion.
Allegedly fraudulent liens
As noted in Debtor's status report, Debtor is (belatedly) seeking authorization for the postpetition employment of special counsel to pursue an action in state court for fraud and quiet title with respect to allegedly fraudulent liens encumbering the 69th Way and Shadow Lane properties.
Dkt. 57 & 69, p.3:2-4. Debtor has stated an intention to sell the Shadow Lane property but not the 69th Way property. What cost/benefit analysis have Debtor and Debtor's bankruptcy counsel done regarding this litigation?
The holder of the alleged liens appears to be asserting 21% default interest (and a non-default rate of just under 10%) (see dkt.70, p.5:1-6). Of course, all rights are preserved to argue regarding interest rates, but Debtor appears to be gambling on winning the litigation and avoiding the liens and the default interest entirely. In other words, if Debtor is not 100% successful, there appears to be a substantial danger of wiping out any recovery for other creditors and Debtor. Why is Debtor not proposing a course of action that might stop the running of such high rates of interest?
For example, solely for purposes of this tentative ruling this Court presumes (without deciding) that selling the 69th Way property free and clear of the disputed liens, with such liens to attach the proceeds, might stop the running of such interest rates. Alternatively, Debtor might propose a chapter 11 plan that could include alternative treatments of this claim depending on whether the ligitation were or were not successful, and restructuring any secured claims to have a lower interest rate. These are only hypotheticals: again, all rights are preserved to argue whether any such possible solutions would or would not stop the running of these high interest rates, but the point is that Debtor is directed to address why the status report and the docket do not appear to reflect any exploration of methods to avoid what appear to be the large risks of staking everything on Debtor's litigation.
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Rehabbers Financial, Inc. dba Aztec Financial ("Aztec")
opposition to second cash collateral motion (dkt. 70)
Aztec's opposition notes that Debtor's second cash collateral motion proposes to pay Aztec $2,000/month of the $5,465/month generated by the property, and allocates $1,058.20 to taxes, insurance, and maintenance, but Debtor does not explain what the remaining $2,379.80/month will be used for. Dkt. 70, p.4:24-27. Aztec also disputes Debtor's valuation of the property, and states that Debtor should at least be making the non-default, pre-maturity contractual payment of $4,535.67/month. Id. at p.5:17-28. While the second cash collateral motion states that Debtor's basis for the valuation of the property is Debtor's declaration, Debtor's declaration does not address the value of the property. Dkt. 55, p.11. Lastly, Aztec states that it has requested access to the property to arrange its own appraisal. Id. at
p.5:21-23.
Tentative ruling on both cash collateral motions
The tentative ruling is to order Debtor to segregate 100% of any rents and profits from each rental property (the 69th Way, Shadow Lane, and 68th Way properties), and hold all such funds - after payment of real estate taxes, insurance, utilities, and essential repairs - in separate blocked accounts until further order of this Court, so as to provide an interim form of adequate protection to Aztec and to other lienholders. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to serve all lienholders with notice of a continued hearing on the cash collateral motions, concurrent with the continued status conference set forth below. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to provide Aztec and all other lienholders with access to the properties for any inspection/appraisal they wish to conduct (or, alternatively, to schedule by 2/25/20 an inspection/appraisal after 2/25/20 at a time that is convenient for the lienholders).
January MOR (dkt. 73)
This MOR (dkt.73, p.17) shows general liability insurance due to expire/only paid through 1/25/20. Has that insurance been extended? Are the MORs up to date?
Prosecution of this case
As set forth above, Debtor's prosecution of this case appears to be
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inadequate. Cash collateral motions are known as "first day" motions; but Debtor's cash collateral motions have been filed belatedly, served incorrectly (despite this Court's prior direction), and presented in a confusing manner (it is ambiguous whether the second motion supersedes or is in addition to the first motion). Similarly troubling, Debtor's application to employ special counsel has been filed belatedly, and neither that application nor Debtor's status report adequately address the cost/benefit analysis about pursuing that litigation and selling the 69th Way property or otherwise addressing possible methods to stop the running of high interest rates that could wipe out any value in this bankruptcy estate. What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
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Current issues
Cash collateral motion (dkt.31&32)
Grant in part and deny in part on an interim basis, as set forth in calendar no. 2, 1/14/20 at 1:00 p.m.
Status report
At the hearing on 12/17/19 this Court orally directed Debtor's counsel to file a status report no later than 12/31/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Amended November Monthly Operating Report ("MOR," dkt. 43)
State court suit
The MOR reflects a $5,000 payment to James A. Judge, Esq. related to a civil law suit. Dkt. 43, p.9. Debtor also states that "a civil law suite against Aztec Financial (Secured Creditor) is pending." Id. at p.30.
The docket does not reflect any application to employ Mr. Judge as special counsel. In addition, there is no disclosure whether this payment was on account of prepetition or postpetition fees/costs/other charges. Should this Court issue an order directing Mr. Judge to show cause why he should not disgorge that payment and/or why he, Debtor, and/or Debtor's bankruptcy counsel should not have a remedy imposed for expending assets of this bankruptcy estate in violation of the Bankruptcy Code?
Car insurance
The MOR reflects that Debtor's car insurance is due to expire on 12/31/19. Id. at p.26. Has Debtor obtained replacement insurance?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., brief status report due 2/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Cash collateral motion (dkt.31-33)
Debtor has self-calendared this motion for 1/14/20 at 1:00 p.m. That is over a month after the petition date.
What is Debtor doing with the cash meanwhile? There may be no good answer: either Debtor is using the cash, in violation of 11 U.S.C. 363(c), or Debtor is not using the cash to pay essential expenses, in violation of Debtor's duties to manage the estate and pay utility bills and other ordinary and necessary expenses in a timely manner (see 11 U.S.C. 1107-08 and 28
U.S.C. 959(b).
Why did Debtor not use the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) to have this matter heard on 14 days' notice, or alternatively apply for an order shortening time if the matter needed to be heard before that 14 day period?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/14/20 at 1:00 p.m., brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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GOLDMAN SACHS BANK USA
vs DEBTOR
Docket 25
Tentative Ruling for 3/31/20:
Please see tentative ruling for status conference (calendar no. 20, 3/31/20 at 1:00 p.m.).
Debtor(s):
South Street Brentwood, LLC Represented By Michael Jay Berger
Movant(s):
Goldman Sachs Bank USA Represented By Daniel H Slate
Anthony J Napolitano
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Docket 4
Tentative Ruling for 3/31/20:
Take this matter off calendar in view of stipulated dismissal order (dkt. 101). Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Goldman Sachs' Motion for relief from stay (dkt. 25-28, the "R/S Motion"), Debtor's opposition (dkt. 31), Goldman Sachs' reply (dkt. 32, 33), adequate protection order (dkt. 39), Debtor's supplemental briefs (dkt. 47,57), Goldman Sachs' supplemental briefs (dkt. 49-51, 67-68), orders (dkt. 72, 79), status report (dkt.83), order granting R/S Motion (dkt. 95, ("R/S Order")
It appears this matter is mooted by the dismissal of this case. The tentative ruling is not to issue any further relief on this matter.
Deadlines/dates. This case was filed on 6/25/19.
Bar date: 10/15/19 (dkt. 21; timely served, dkt. 23)
Procedures order: dkt. 3 (timely served, dkt. 11)
Plan/Disclosure Statement*: N/A
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Continued status conference: N/A
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
South Street Brentwood, LLC Represented By Michael Jay Berger
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fr. 4/12/16, 04/26/16, 05/17/16, 8/2/16, 9/6/16, 11/8/16, 11/29/16, 1/17/17, 1/31/17, 03/21/17, 4/11/17, 06/13/17,
9/19/17, 11/14/17, 02/13/18, 7/10/18, 9/18/18, 12/18/18,
6/11/19, 10/15/19, 12/10/19
Docket 271
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Candice Candice Bryner
Trustee(s):
Brad D Krasnoff (TR) Pro Se
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Docket 152
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
Docket 150
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
Docket 65
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Tentative Ruling for 1/14/20:
Please see the tentative ruling in the status conference (cal. no. 4, 1/14/20 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling in the status conference (cal. no. 19, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/29/19:
Please see the tentative ruling in the status conference (cal. no. 10, 10/29/19 at 1:00 p.m.).
Tentative Ruling for 10/15/19:
Please see the tentative ruling in the status conference (cal. no. 3, 10/15/19 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar
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Ron Maroko
1:00 PM
fr. 12/10/19, 1/14/20, 2/18/20
Docket 125
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
Docket 1
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
Continue to the same date and time as the continued status conference (see below), with a deadline of 4/6/20 at noon for Debtor to file amended bankruptcy schedules I & J, including all continuation sheets for line
8.a of schedule I.
At the continued status conference, the parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on the UST's MTD and any argument at the hearing, based on the matters addressed in the MTD and supplement, Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174), Debtor's hiring of a claims adjuster on or about 1/7/20 (dkt.
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167, p.3, para. 11) without authorization of this Court, and Debtor's apparent arrangement for the claims adjuster to hire counsel to represent the bankruptcy estate without authorization of this Court.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
Continue to the same date and time as the continued status conference (see below). The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right ot object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 1:00 p.m., concurrent with other matters. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
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Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
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Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and
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attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
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Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77, 80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
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Termination of prior real estate agent
Debtor reports (dkt. 69, para.3) that the previously authorized real
estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
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Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent [that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties")
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that may be part of a real estate transaction for the sale of the Real Property [i.e., dual agency? that is prohibited by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
What does the quoted text mean? This Court's questions are set forth in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
Docket 545
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Ballard Rosenberg Golper & Savitt, Special Counsel
Docket 548
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
of Expenses for Period September 1, 2019 through February 29, 2020
Docket 549
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 413
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
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Payment to Debtor fr. 1/28/20
Docket 486
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
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fr. 1/28/20
Docket 475
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
TCF EQUIPMENT FINANCE, a Represented By
Raffi Khatchadourian Christopher D Crowell
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fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20
Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
TCF Equipment Finance, Inc.'s Motion For Allowance And Payment Of Administrative Expense Claim (dkt. 475), Debtor's Amended Motion For Order Authorizing Surcharge Of Collateral (dkt. 486), and Joint Status Report (dkt. 567)
The tentative ruling is to continue both motions to the same date and time as the continued status conference as set forth below, as requested by the parties (see dkt. 567, p.3:9-12), to ensure that the parties document and file their agreement with this Court, with the understanding that the motions will come off calendar if an order resolving the motions is issued prior to the continued hearing.
Dr. Timonth J. Stacy DNP, ACNP-BC First and Final Fee
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Application (dkt. 413), Notice of Hearing (dkt. 550), and Leslie McNeal's declaration in support (dkt. 556)
Allow Dr. Stacy $7,787.50 in fees, but authorize payment of $6,000.00 in fees, per the Stipulation For Order Directing The Appointment Of A Patient Care Ombudsman (dkt. 147, order dkt. 149).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Grobstein Teeple, LLP Amended Second Interim Fee Application (dkt. 545), Notice of Hearing (dkt. 550), and Leslie McNeal's declaration in support (dkt. 556)
Allow Grobstein Teeple, LLP $82,498.50 in fees, and $63.43 in expenses, for a total of $82,561.93.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Ballard, Rosenberg, Golpert & Savitt, LLP Interim Fee Application (dkt. 548, amended dkt.569), Notice of Hearing (dkt. 550, amended dkt.571), and Leslie McNeal's declaration in support (dkt. 556, amended dkt.570)
Allow Ballard, Rosenberg, Golpert & Savitt, LLP $8,497.00 in fees, and authorize payment of $2,460.00 from the retainer and the unpaid balance of
$6,037.00 from the estate.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Margulies Faith, LLP Third Interim Fee Application (dkt. 549), Notice of Hearing (dkt. 550), Errata Re Third Interim Fee Application (dkt. 554), and Leslie McNeal's declaration in support (dkt. 556)
Allow Margulies Faith, LLP $395,042.00 in fees, and $5,946.80 in expenses, for a total of $400,988.80.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement (dkt. 562, 563)*: combined hearing on plan and disclosure statement set for 4/21/20 at 1:00 p.m. (see
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dkt. 559).
Continued status conference: 4/21/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/10/20:
Appearances are not required on 3/10/20.
Current issues
Debtor's Amended Plan (dkt. 532) and Amended Disclosure Statement (dkt. 533)
The tentative ruling is to approve the disclosure statement on an interim basis and direct Debtor no later than 3/12/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of the voting package and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for 4/21/20 at 1:00 p.m.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement*: See above
Continued status conference: 3/31/20 at 1:00 pm. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
NATHANAEL YUN AND JONG SUK CHOI
vs DEBTOR
Docket 79
Revised Tentative Ruling for 3/31/20:
Grant in part, as set forth below. Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology, and scope of discussion
One terminology issue has to do with Debtor's corporate structure.
Debtor is a California nonprofit religious corporation. This Court understands that Debtor has no "equity interest holders" per se. But in discussing the scope of the automatic stay it is helpful to distinguish between persons who might be in a debtor-creditor relationship with Debtor (e.g., arising from LA Open Door's lease of Debtor's property) and persons who assert the sort of control typically exercised by equity interest holders. The following discussion sometimes refers to the latter as "equity."
Another issue of terminology is the distinction between Debtor as an entity and the factions that seek to control Debtor and its property. There appear to be essentially two factions in the present disputes: one led by Rev. Joo Mo Ko (the "Ko Faction") and another consisting of Rev. Jong Suk Choi aka Olaf Choi, the LA Open Door Presbyterian Church ("LA Open Door"), and
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The Western Presbytery of the Hapdong ("Hapdong") (collectively, the "Choi Faction"). This tentative ruling will attempt to distinguish among each of these two factions and Debtor itself.
On a related issue, the factions' governance dispute appears to include not just control of Debtor itself but also which church organization governs Debtor's structure. These disputes include whether Debtor and LA Open Door did or did not merge, and whether the local church (i.e., Debtor, either as a separate entity or merged with LA Open Door) is affiliated with/part of the LA Presbytery of the World Korean Presbyteryan Church ("World Church") or Hapdong or both. See dkt.71, pp.3:13-4:4, 4:25-5:16, 6:13-9:24.
One more preliminary issue is that this tentative ruling covers two motions at once. Both motions deal with the applicability of, and relief from, the automatic stay of 11 U.S.C. 362(a). The Ko Faction seeks an order stating that the automatic stay applies to the State Court litigation (dkt. 71, the "Stay Motion"). Conversely, the Choi Faction disputes that any stay applies but, to the extent this Court determines that the automatic stay does apply, requests that this Court grant them relief from the automatic stay to continue with that litigation (dkt. 79, 80, 81, the "R/S Motion").
Notice
It is unclear whether service has been accomplished in accordance with Rules 4001(a)(1) (Fed. R. Bankr. P.), or if there are sufficient grounds for ex parte relief under Rule 4001(a)(2). The parties are directed to address those issues. Presuming for purposes of discussion that those issues are adequately resolved, the tentative ruling on the other issues is as follows.
The automatic stay does apply
This is a more thorny issue than first appears. And arguably it is not necessary to determine whether the automatic stay applies, because as set forth below the tentative ruling is that there is "cause" (11 U.S.C. 362(d)(1)) to grant relief from any stay that does exist.
But, as set forth later in this discussion, the tentative ruling is to modify but not terminate the automatic stay, so it makes a difference if there is or is not any automatic stay to begin with. The tentative ruling is that, although several aspects of the automatic stay do not apply, one does apply.
(a) 362(a)(1)
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Section 362(a)(1) operates as a stay of "the commencement or
continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title." 11
U.S.C. 362(d)(1) (emphasis added). No stay exists under section 362(a)(1) because the subject litigation does not include any claims, counterclaims, or other legal actions against Debtor. See Parker v. Bain, 68 F.3d 1131 (9th Cir. 1995).
The Ko Faction asserts that section 362(a)(1) applies because the claims by Debtor (or, more precisely, by the Ko Faction purporting to act for Debtor) "have the same effect as if they had been brought by the Defendants instead" (i.e., by the Choi Faction) and therefore should be characterized as "effectively causes of action against the Debtor." Dkt.93, p.10:9-10 (emphasis added). There is no authority cited for that proposition. To the contrary, it is well established that the act of defending against claims brought in the name of a debtor is not stayed. See, e.g., In re Merrick, 175 B.R 333, 338 (9th Cir. BAP 1994). The tentative ruling is that the automatic stay of section 362(a)(1) does not apply.
(b) 362(a)(3)
Section 362(a)(3) operates as a stay of "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." 11 U.S.C. 362(d)(3).
Property "of" or "from" the estate
Although claims held by a debtor are property of the bankruptcy estate, claims about who controls a debtor are not "property of the estate." Any "possession" of property that Debtor owned as of the petition date stays with Debtor, regardless who controls Debtor. The Ko Faction's arguments to the contrary (e.g., dkt.93, pp.10:25-6:12) are not persuasive.
Acts to exercise "control" over property of the estate
The Ko Faction's alternative argument is more persuasive. In this case the gravamen of the parties' disputes is who has control over Debtor's real property, alleged to be worth roughly $17 to $25 million or more (dkt.71, p.4:9; dkt.84, p.5:19-21). There are interrelated disputes about whether each faction is entitled to control Debtor or is merely a creditor or other type of interested party - e.g., whether LA Open Door is merely a lessee, which is or
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is not current on rent, or if LA Open Door merged with Debtor and the Choi Faction now controls Debtor.
The issues involve not merely theoretical or future control. The issues include who has current control over physical access to the real property for church services, who can examine books and records, who can use Debtor's name, who can speak for Debtor, who can make agreements for Debtor, who has signing authority over its bank accounts, etc.
In this situation the tentative ruling is that the stay does apply, because the disputes over governance are so intertwined with the control of Debtor's property that they constitute acts "to exercise control over property of the estate" within the meaning of 11 U.S.C. 362(a)(3) (emphasis added). See, e.g., dkt.71, p.16:20-26; Allentown Ambassadors, 361 B.R. 422, 435-40 & nn.34-40 (Bankr. E.D. Pa. 2007) (extensive review of cases, concluding that whether section 362(a)(3) applies depends on "(1) the nexus between the conduct at issue and the property interests of the bankruptcy estate, (2) the degree of impact on the bankruptcy estate, and (3) the competing legal interests of the non-debtor parties") (footnotes omitted).
As the Ko Faction explains:
The Complaint [in the State Court action that is the main subject of the motions regarding the automatic stay] thus alleges that the current state of affairs is that the Defendants are exerting control over the Property, to the exclusion of the Debtor. The Debtor seeks a declaration by the Court as to the respective rights of the parties. The relief sought in the Complaint is thus a zero sum game; if the Debtor fails to obtain this relief, Defendants will continue to exert control over the Property to the exclusion of the Debtor. If the Debtor prevails, the opposite result will occur. [Dkt.71, p.8:17-22 (emphasis added)]
The same exclusive control applies not just to Debtor's real property but also to every other type of property: Debtor's name, bank account, goodwill, etc.
The Choi Faction cites authority that, at least as a general proposition, governance disputes are not stayed by section 362(a)(3). Dkt.84,
pp.18:26-20:10. But the tentative ruling is that the cited authorities are distinguishable.
The decision on which the Choi Faction principally relies is In re Am.
Media Distribs., LLC, 216 B.R. 486 (Bankr. E.D. N.Y. 1998). But that decision
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notes that there was "little or no explanation as to why the automatic stay would apply" and the principal focus was only on the "distraction" that the dispute would cause. Id. at 489.
Another decision cited by the Choi Faction did not involve the automatic stay - it never even cites section 362. Rather, it involved whether to enjoin stockholders from exercising their regular voting rights to elect directors, which is not at issue in this case. See In re Johns-Manville Corp., 801 F.2d 60, 64-69 (2d Cir. 1986).
The last decision cited by the Choi Faction involved the voting of pledged shares, but there is no indication that such voting was anything beyond the conventional application of nonbankruptcy contract and voting rights. In re Marvel Ent. Group, 209 B.R. 832, 838-40 (D. Del. 1997). In fact, Marvel distinguishes contrary authorities as involving creditor/shareholders exercising extraordinary remedies, in contrast to "the conventional case of a shareholder seeking to invoke its corporate governance rights" and "matters of corporate governance in the orthodox sense." Id. at 839 (citations and internal quotation marks omitted, emphasis added).
Unlike Marvel, this case involves disputes by the Ko Faction and the Choi Faction that are anything but a "conventional" or "orthodox" exercise of equity holders' voting rights. Instead, both factions allegedly have a mix of roles that appear to include both "claims" (in the broad bankruptcy sense) and the excerise of "equity control," and both factions assert the right to control the disposition of Debtor's real property and other assets. It is difficult to see how the factions' acts to wrest control of Debtor and all its property from one another are not acts to "exercise control over property of the estate." 11
U.S.C. 362(a)(3).
This is illustrated by the fact that the Ko Faction has filed a motion to appoint a real estate agent to sell the real property. Similarlly, the Choi Faction has filed a motion to dismiss this bankruptcy case, which would have the effect of terminating the automatic stay and other provisions of the Bankruptcy Code that protect the estate's real property and its rights to whatever rents are or are not being paid. See, e.g., 11 U.S.C. 362(a)(3)&(c) (2)(B), and 549.
In other words, the papers filed in this Bankruptcy Court reflect that the factions' litigation in State Court is not just a conventional stockholder dispute but is a fight among parties whose roles as equity, or creditors, or something else is far from clear, and is a fight over "control" of Debtor's property as
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much as it is a fight over control of Debtor itself.
In these circumstances, the tentative ruling is that the automatic stay of section 362(a)(3) applies.
(c) Conclusion regarding application of the automatic stay
For the foregoing reasons the tentative ruling is that the automatic stay does apply. But, as set forth below, the tentative ruling is to modify the automatic stay to permit the parties to continue their State Court litigation.
Alternatively, even if the automatic stay were inapplicable to the State Court litigation, the stay still would apply in other respects. For example, the stay would prevent any party from enforcing any future judgment for money damages by collecting out of property of the bankruptcy estate. See 11
U.S.C. 362(a)(1), (3), (4), (6) and (7). Therefore, it is still important to determine how much relief to grant, even if the stay does not apply to the governance/control aspects of the State Court litigation.
There is "cause" to grant relief from the automatic stay (if it applies)
Legal standards
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004).
Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6)
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Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Application of the legal standards
Based on the present record, the tentative ruling is that these factors weigh in favor of modifying the automatic stay to permit the parties to continue their State Court litigation.
As to the first Curtis factor (would relief result in partial or complete resolution of the issues), the tentative ruling is that granting relief would result in complete resolution of the issues. The State Court appears to have all the parties before it, and to be addressing the same governance/control issues that this Bankruptcy Court would have to address, so it can completely resolve these issues.
True, governance issues are also a critical threshold issue for bankruptcy purposes. As the State Court put it, "it's hard for me to believe that the Bankruptcy Court doesn't, as a threshold matter, decide who's in charge." Tr. 2/21/20, p.12:7-9 (dkt.71, Ex.10, at PDF p.139). But, as the State Court also observed, the issues are the same in both fora. See Tr. 2/21/20, p.14:11-13 (dkt.71, Ex.10, at PDF p.141) ("the threshold issue is I suspect the Bankruptcy Court does decide who's in charge just like I'm trying to do for this preliminary injunction") (emphasis added).
As to the second Curtis factor (connection with or interference with the bankruptcy case) and the seventh Curtis factor (prejudice to other creditors/interested parties) the tentative ruling is that, far from interfering with
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this bankruptcy case or causing prejudice, resolution of the issues that are already well underway in the State Court is essential to determine the bankruptcy issues: e.g., whether Debtor's bankruptcy petition was even authorized; who is authorized to determine the disposition of property of the bankruptcy estate; who has authority to decide what litigation to pursue on Debtor's behalf; etc.
As interesting as these issues would be for this Bankruptcy Court to delve into, the roughly 2000 pages of documents attached to the Choi Faction's motion papers (dkt. 79) show that this Bankruptcy Court would be reinventing the wheel. Starting over and re-litigating the issues would be prejudicial to all parties in interest, and it appears that resolving these issues in State Court is the most expeditious and efficient way to address these issues.
As to the fourth Curtis factor (whether a specialized tribunal has been established to hear the action) and the eleventh Curtis factor (whether the proceedings have progressed to the point where the parties are prepared for trial), the tentative ruling is that, (i) although the State Court is not specialized in the sense of limiting itself to corporate/religious governance/control issues, the same is true for this Bankruptcy Court, so this factor is neutral, and (ii) although the proceedings in State Court appear to be far from any trial, the roughly 2000 pages show that those proceedings are well underway.
As to the tenth Curtis factor (interest of judicial economy) the tentative ruling is that forcing the parties to start anew in this Court would result in a duplication of efforts and would be a waste of judicial resources.
As to the twelfth Curtis factor (the impact of the stay on the parties and the "balance of hurt"), the tentative ruling is that the bankruptcy petition has already delayed adjudication of the issues before the State Court, and caused considerable expense and disruption, and that these things fall more heavily on the Choi Faction than the Ko Faction. Among other things, the Choi Faction was not given adequate notice by the Ko Faction of the extraordinary "emergency" relief that the latter sought in this Bankruptcy Court, and it turns out that, so far as this Court can discern, there is no emergency.
To be clear, this Court is not saying that there is no legitimate need for bankruptcy protection. True, it is not apparent that Debtor is insolvent. But the automatic stay and 11 U.S.C. 549 may provide broader protection than what is available in other fora to protect against unauthorized transfers of property. For example, a typical injunction only applies to specified parties
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and specified property, and it does not necessarily render acts in violation of the injunction void ab initio. In contrast, the automatic stay applies even to unknown parties and unknown property and acts in violation of the stay are void ab initio. See, e.g., In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992).
But there is no reason known to this Court why the Ko Faction could not have gained the legitimate protections of the automatic stay and section 549 and then stipulated to relief from the automatic stay to conclude the State Court litigation. Instead, as noted above, the Ko Faction sought "emergency" relief with inadequate notice, in what appears to be an attempted end-run around the State Court proceedings.
For all of these reasons, the tentative ruling is that any continued stay of the State Court proceedings has greater cognizable impact on the Choi Faction than the Ko Faction, and that the "balance of hurt" also favors granting relief from the stay.
In addition to the precise factors outlined in Curtis, this Court is considering all the other facts and circumstances. In the interest of comity and to discourage forum shopping, the tentative ruling is that it is appropriate for the litigation to continue in the State Court. That is the initial forum that the Ko Faction selected, and it is the forum that the Choi Faction favors retaining.
For all of the foregoing reasons, the tentative ruling is that under the Curtis factors and analysis there is "cause" (11 U.S.C. 362(d)(1)) to grant relief from the automatic stay as set forth below. This Court considers below whether there is an alternative basis on which relief from the automatic stay must be granted.
Mandatory abstention does not apply
An alternative ground for relief from the automatic stay would be if mandatory abstention applies. ("Relief" from the stay does not necessarily mean immediate termination of the stay - it might be appropriate to modify but not terminate the stay, or to leave it fully in place for some period of time, to give Debtor a "breathing spell" - but the point is that, if mandatory abstention were to apply, that would be an alternative basis for some form of relief from the automatic stay.)
Mandatory abstention is governed by statute:
Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title
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11 [i.e., the Bankruptcy Code] but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court [and the
bankruptcy court as a unit thereof] shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. [28 U.S.C. 1334(c)(2) (emphasis added).]
The emphasized terms "related to," on the one hand, and "arising under" or "arising in," on the other hand, are terms of art. The Supreme Court has held that the latter are equivalent to the statutory term "core" under 28
U.S.C. 157(b)(1). Stern v. Marshall, 564 U.S. 462 (2011).
A non-exclusive list of matters defined as "core" proceedings is set forth in 28 U.S.C. 157(b)(2). The tentative ruling is that who has authority to file a bankruptcy petition, make decisions for a debtor in possession, and control its property is a "core" proceeding, as a matter of statutory construction (28 U.S.C. 157(b)(2)(A) & (O)). See e.g. In re Fisher Island Invs., Inc., 778 F.3d 1172 (11th Cir. 2015) (confirming bankruptcy court had statutory authority over ownership dispute under 28 U.S.C. 157(b)(2)(A), (O), because "ownership issue is a core matter that clearly ‘arises under’ or ‘arises in a case under’ chapter 11. Resolution of threshold ownership issue was critical to the administration of the Alleged Debtors’ estates ").
Turning to Constitutional limitations, a determination of who controls Debtor and its property is sufficiently central to the administration of the bankruptcy estate that it has been held to be what is sometimes called "Constitutionally core." See e.g., In re Fisher Island Invs. Inc., 778 F.3d at 1192 (affirming bankruptcy court’s determination that it had constitutional authority over ownership dispute because "[t]he ownership issue does not simply have ‘some bearing’ on the bankruptcy proceedings the bankruptcy
court could not undertake the bankruptcy proceedings without first determining who owned the Alleged Debtor, and thus who represented them "); In re First Korean Christian Church of San Jose, 567 B.R. 575,
578-578 (Bankr. N. D. Cal. 2017) (rejecting argument that bankruptcy court lacked jurisdiction to determine who controlled Debtor and noting that although bankruptcy court must defer to church hierarchy for resolution of religious issues, bankruptcy court could "apply ‘neutral principals of law’ such as corporate governance in settling disputes as to ownership of church
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property ...").
True, the governance of Debtor depends entirely on nonbankruptcy issues: (i) interpretation and application of nonbankruptcy law and (ii) interpretation and application of nonbankruptcy agreements and principles of the local church and any national or international church organizations. But it is difficult to conceive of anything more central to the administration of a bankruptcy case than determining who has authority to file the bankruptcy petition, or to hire professionals for the debtor in possession, or to sell a debtor's assets or otherwise manage the bankruptcy estate as a trustee for the benefit of creditors.
Therefore, the tentative ruling is that any determination of who controls Debtor comes within this Bankruptcy Court's "arising in" jurisdiction and is both statutorily and constitutionally core. In other words, the tentative ruling is that mandatory abstention does not apply, so this is not a ground on which this Court will grant relief from the automatic stay.
Scope of relief
Under Section 362(d) this Court "shall" grant relief if the statutory criteria for such relief are established. But such relief need not take the form of "terminating" the stay. The statute states: "relief ... such as by terminating, annulling, modifying, or conditioning such stay ...." 11 U.S.C. 362(d) (emphasis added).
The tentative ruling is to modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate
The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
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Claim allowance, priority, and discharge issues
Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Comity with State Court
The State Court Judges stayed their proceedings pending this Bankruptcy Court's ruling on today's motions. This Bankruptcy Court appreciates the State Court's careful approach to the possible existence of the automatic stay, which turned out to be a complex issue as discussed above.
This Bankruptcy Court also seeks to preclude any undue delays or potential gamesmanship in future by parties who might seek to invoke the automatic stay when it does not apply (either because of this Bankruptcy Court's order(s) granting relief from the automatic stay, or because of the inherent limits of section 362(a)). To that end, this Bankruptcy Court offers the following.
First and foremost, this Bankruptcy Court is available to make rulings on the applicability of the automatic stay, and to grant any appropriate relief. The Local Bankruptcy Rules and this Court's posted procedures permit expedited relief, including speedy telephonic hearings if warranted. Even during this COVID-19 situation, this Bankruptcy Court's law clerks and the Clerk's Office staff are constantly monitoring voicemails, processing orders, setting up telephonic hearings, etc.
Second, recognizing that even speedy relief might not be speedy enough, this Bankruptcy Court reiterates that, contrary to the Choi Faction's arguments (dkt.71, pp.21:25-23:7), the State Court has concurrent
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jurisdiction. The State Court can interpret (a) the automatic stay (which is deemed to be an order of this Bankruptcy Court), and (b) any other order of this Court, such as an order modifying the stay. This is no different from the State Court interpreting the orders of any other court, as it does all the time.
In other words, the State Court need not halt its proceedings every time any litigant asserts that the automatic stay might apply. See 28 U.S.C. 1334(b) (federal District Courts, and the Bankruptcy Courts as a unit thereof, have "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11") (emphasis added), In re Gruntz, 202 F.3d 1074, 1083-84 (9th Cir. 2000) (distinguishing State Court orders "modifying the automatic stay" from those "merely interpreting federal law").
Of course, it is up to the State Court, in the exercise of its judgment, to assess whether the risks of proceeding are outweighed by the benefits. See Gruntz, 202 F.3d 1074, 1087 (if State Court proceeds without order of Bankruptcy Court, the former "risks having its final judgment declared void"). Meanwhile, again, this Bankruptcy Court will make every effort to grant speedy rulings on any issue that might arise involving the automatic stay.
Conclusion
Assuming for that sufficient notice notice has been provided under Rule 4001(a) for this Court to rule on the motions related to the automatic stay, the tentative ruling is as follows. The automatic stay applies under 11
U.S.C. 362(a)(3), but there is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is that such relief should take the form of modifying the automatic stay as set forth above.
As set forth in more detail above, the tentative ruling is that the parties can proceed with their State Court litigation to final judgments or orders. But the automatic stay remains in place to prevent collection of any monetary judgment out of the bankruptcy estate or disposition of estate property, absent further order of this Bankruptcy Court.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
Movant(s):
Jong Suk Choi Represented By Monica Y Kim
Nathanael Yun Represented By Monica Y Kim
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Docket 71
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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fr. 2/28/20
Docket 16
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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fr. 2/28/20
Docket 15
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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Does Not Apply To The State Court Action fr. 2/28/20
Docket 29
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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fr. 2/28/20
Docket 25
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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Docket 1
Revised Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of Nathanael Yun and Jung Suk Choi to Dismiss this case as a bad faith filing, and supporting papers ("MTD," dkt. 29, 30, 31, 32, 35, 36, 38), debtor’s opposition (dkt. 53, 54, 55) and evidentiary objections (dkt. 48, 49, 50, 52, 56), declaration of Mr. Yun in support of MTD (dkt. 57, "Yun Decl."), debtor’s motion to strike Yun decl (dkt. 58), declaration of Barry Florence in support of MTD (dkt. 61), notice of continued hearing (dkt. 73, 74), Yun/Choi reply (dkt. 91)
The tentative ruling is that it is premature to make any final determination, before it is even apparent to this Court who is responsible for the lack of information to prepare bankruptcy schedules and other information. But on the present record this Court is not persuaded that there is no legitimate purpose for this bankruptcy case or other grounds sufficient to dismiss this case. As set forth in the tentative rulings on certain automatic- stay related motions (calendar no. 34, 3/31/20 at 1:00 p.m.), there appears to be a legitimate need for the protections of the automatic stay and 11 U.S.C.
549. But the tentative ruling is also to grant the alternative relief of modifying the automatic stay.
In addition, the parties should be prepared to address how this estate
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should be managed pending final rulings in the State Court litigation and whether this Court should appoint a Chapter 11 Trustee in view of (i) the parties' governance dispute, (ii) the existing authority conferred upon a receiver who has been appointed in one of the actions in State Court, and (iii) 11 U.S.C. 543(b)(1)&(2) requiring turnover and an accounting.
Debtor's motion for order confirming stay applies in state court action ("Stay Motion," dkt. 71), opposition (dkt. 84), debtor's reply (dkt. 93)
Please see the tentative ruling for the R/S Motion (Calendar No. 34, 3/31/20 at 1:00 p.m.).
Messrs. Yun and Choi's motion for relief from the automatic stay ("R/S Motion," dkt. 79), memorandum of points and authorities (dkt. 80), request for judicial notice (dkt. 81), debtor's opposition (dkt. 86) and supporting declaration (dkt. 87), reply (dkt. 92)
The tentative ruling is to grant this motion and modify the stay on the terms set forth in the tentative ruling for the R/S Motion (Calendar no. 34, 3/31/20 at 1:00 p.m.).
Plan Procedures Motion (dkt. 16), Yun/Choi opposition (dkt. 85), debtor’s reply (dkt. 94)
The tentative ruling is to deny this motion without prejudice, for the reasons stated in the tentative ruling for the R/S Motion.
Debtor's application to employ chief restructuring officer (dkt. 15), UST’s objection (dkt. 37), notice of continued hearing (dkt. 77), Yun/Choi opposition (dkt. 85), debtor’s reply (dkt. 94)
The tentative ruling is to deny this motion without prejudice, for the reasons stated in the oppositions to the motion and in the tentative ruling for the R/S Motion.
Debtor's application to employ real estate broker (dkt. 25), notice of continued hearing (dkt. 76), Yun/Choi opposition (dkt. 85), debtor’s reply (dkt. 94)
The tentative ruling is to deny this motion without prejudice, for the reasons stated in the tentative ruling for the R/S Motion.
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Proposed orders: If this Court is persuaded to adopt the foregoing
tentative rulings, in whole or in part, then the Choi Faction (as defined in the tentative ruling on the R/S Motion) is directed to lodge proposed orders on all motions via LOU within 7 days after the hearing date.
The tentative ruling is that after the hearing this Court will issue a "Memorialization Of Tentative Rulings" or similar document, and all lodged order should incorporate that document by reference, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Other matters
The parties are directed to address the status of efforts to assemble information and prepare a reliable creditor matrix, bankruptcy schedules, and other documents. More generally, the parties are directed to address any other issues relevant to the status of this case, and whether this Court should exercise its discretion to set briefing schedules on any upcoming issues, remand removed actions to State Court, suspend all proceedings in this bankruptcy case (while leaving in place the automatic stay and other protections) (11 U.S.C. 305), or take any other acts to manage this case and this Court's docket.
Deadlines/dates. This case was filed on 2/14/20.
Bar date: TBD
Procedures order: dkt.5. (no proof of service)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/19/20 at 1:00 p.m. Status report on this Court's local form due 5/5/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 2/28/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
The following tentative rulings are subject to any opposition and other persuasive argument at the hearing:
Background: church solvency, and governance disputes
Debtor appears to be very solvent, but alleges cash flow problems.
Those problems appear to be intertwined with governance disputes.
Solvency
Debtor's bankruptcy petition and list of 20 largest general unsecured creditors ("GUCs") (dkt. 1, 11) list very few GUCs, with total claims of under
$896,000. Debtor's "first day" motions allege that it owns 1218 South Fairfax Ave., Los Angeles, California (the "Property"), which Debtor estimates is worth between $17 and $18 million and is only encumbered by a first deed of trust lien of approximately $630,000 in favor of Commonwealth Business Bank (the "Bank").
Debtor alleges that its cash flow problems arise from a prepetition dispute with LA Open Door Presbyterian Church ("LA Open Door"), which was a lessee from Debtor under a lease that Debtor alleges was terminated prepetition after months of non-payment. LA Open Door is also subject to a final judgment of approximately $3 million in favor of Evangelical Christian Credit Union ("Evangelical CU"). Debtor reports that Evangelical CU obtained appointment of a receiver over LA Open Door, Thomas Seaman (the "Receiver"), but that LA Open Door has been uncooperative with the Receiver. All of this allegedly has exacerbated Debtor's cash flow problems.
Governance issues
Debtor has no board of directors, but asserts that it is governed by certain elders known as the "Session," which Debtor alleges is analogous to a corporate board of directors. See dkt.16 (the "Plan Procedures Motion"), p.4:1-3. Debtor acknowledges that there is a governance dispute among, on
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the one side, Debtor's Session and religious leaders associated with the Session and, on the other side LA Open Door, The Western Presbytery of the Hapdong in USA ("Hapdong"), and their associated religious leaders.
Debtor proposes to sell the Property, pay all creditors in full, and have the surplus available "for distribution to the litigating parties who claim to be the true spokespersons of the Debtor, with such funds to be held by a professional third party fiduciary until such litigation has either concluded or the parties resolve their differences." Dkt.16, p.11:1-6. That approach (selling property now, and arguing about the proceeds later) is a common and effective tool in bankruptcy cases. But the twist in this case is that it is unclear who has legal title to the Property and who has authority to authorize the sale of the Property.
In terms of legal title, this Court takes judicial notice that in bankruptcy cases filed by churches of other religions/denominations there have been disputes about whether "church" property is owned by the worshipers, the leadership of a local church, a single church official in the capacity of a "corporation sole," or some other form. Debtor's papers do not address that issue.
In terms of who has authority to authorize a sale of the Property, Debtor alleges that it had discussions with LA Open Door about a possible merger but called off those discussions in August of 2019. Debtor acknowledges, however, that "LA [Open Door] asserted that the Debtor and LA [Open Door] were already 'one' church under LA [Open Door's] leadership." Dkt.15, p.2:21-24 (emphasis added). In addition, Debtor acknowledges that, although LA Open Door allegedly was supposed to occupy only 60% of the Property under the terms of the lease, instead it had been occupying 100%, and has attempted to become the "de facto owner" of the Property. Dkt.16, p.2, n.1 (emphasis added).
In other words, at least in the past, it was hotly disputed who properly controls both Debtor and the Property. The leadership of LA Open Door apparently claimed to control both, and perhaps Hapdong asserted some control, although its role is not described in Debtor's papers.
Nor is it clear what role, if any, is played by the worshipers at the various church organizations. Do Debtor's worshipers have the power to control the disposition of the Property and/or to replace Debtor's Session and/or its individual leaders? Would Debtor's worshipers oppose a sale of the Property, and prefer to lease it or some other approach, based on capital
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gains taxes or other considerations? Do LA Open Door's and Hapdong's worshipers have any interests at stake? Is it even clear whether a given worshiper belongs to Debtor's congregation or to LA Open Door's and/or Hapdong's?
Perhaps these governance issues have been partially or fully resolved in the nonbankruptcy courts. Debtor reports that on 11/6/19 it commenced an action against LA Open Door entitled Korean Western Presbyterian Church of Los Angeles v. Jong Suk Choi et al. (LA Superior Ct., Case No.
19STCV40062) (the "LA Open Door Litigation"). Debtor reports that the Superior Court has enjoined LA Open Door and others from interfering with Debtor's use of the Property as set forth in its lease with LA Open Door. See dkt.16, p.10:7-14. But, again, Debtor does not describe the situation with Hapdong, and it is unclear whether Debtor's worshipers have any say in these matters.
Based on (i) all of the above-described property ownership and governance issues and (ii) possible assertions that LA Open Door and Debtor have merged or otherwise might be liable for one another's debts, all parties are directed to address whether notice of all of the matters on today's calendar must be provided to various types of persons who have not already been served. In the broadest scenario, perhaps notice should be provided to all worshipers and all creditors of (i) Debtor and also (ii) LA Open Door and Hapdong. The parties are directed to address the scope of notice that may be necessary or appropriate.
Possible difficulties identifying creditors or worshipers, and possible limits on the need for such notice
This Court recognizes that providing notice to a wide range of parties in interest might be difficult, and also might be legally unnecessary. For example, the Receiver for LA Open Door might have supplanted the leaders of that entity, and even its worshipers, on a wide range of governance issues.
But the Receiver's control appears to be limited to collection of revenues, obtaining financial information, and related matters, not sale or other disposition of the Property. In addition, if the Receiver has any potential role in these proceedings, it is unclear if the Receiver would need to apply to the Superior Court for directions, and how principles of comity and respect for the Superior Court's jurisdiction should be applied in this situation.
As for identifying creditors and worshipers, the Receiver's Report regarding LA Open Door (dkt.16, Ex.4, p.2:7-10, at PDF p.33) alleges that the
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Receiver provided notice to various banks and an "internet giving portal" for LA Open Door. The Receiver reports that in response to requests to turn over funds he received only a single check, from Hanin Federal Credit Union ("Hanin CU") (dkt.16, Ex.4, p.2:10-13, at PDF p.33), and that he received little to no cooperation from the leadership of LA Open Door or its worshipers.
According to the Receiver, at the end of various LA Open Door services that he attended its worshipers gave hardly anything to that entity, despite having given generously in the past.
In sum, based on the Receiver's report and Debtor's papers, it may be difficult to identify names and addresses for worshipers or creditors. But the parties are directed to address whether it is necessary or appropriate to direct Debtor to attempt to do so, including but not limited to (i) attempting to communicate to worshipers through the "internet giving portals" for Debtor, LA Open Door, and/or Hapdong, and (ii) attempting to identify creditors through discovery or other mechanisms.
Conclusion as to governance issues
Debtor has served the motions that are the subject of this hearing in accordance with this Court's order shortening time ("OST," dkt. 19), except for one creditor served within a couple of hours after the time directed in the OST, and the tentative ruling to that this is sufficient. See dkt.26, 28.
Nevertheless, before this Court can authorize the sale of the Property, and retention of professionals by Debtor in furtherance of any such sale, it is important to consider whether Debtor's present leadership is authorized to seek those things, and whether other persons might be entitled to oppose or support those things, and therefore whether they should receive notice.
Because of these concerns, all of the tentative rulings set forth below are subject to the possibility that, before this Court authorizes anything, more notice must be given.
Debtor's application to employ bankruptcy counsel (dkt. 13); statement of disinterestedness (dkt. 14)
Debtor seeks to employ SulmeyerKupetz, a Professional Corporation ("Attorneys") as its general bankruptcy counsel. The tentative ruling is to grant the application and authorize Attorneys' employment, subject to the caveats stated above, including any arguments and evidence presented at the hearing, and the possibility of not adopting this tentative ruling at this time but instead continuing this hearing to provide more notice.
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Debtor's application to employ chief restructuring officer (dkt. 15)
Debtor seeks to employ Broadway Advisors, LLC ("Broadway"), and its principal Alfred M. Masse, as its financial advisor and Chief Restructuring Officer ("CRO"). Debtor seeks to provide Broadway with "sole decision- making authority with respect to the sale of the Property." Dkt.16, p.10:3-4.
The tentative ruling is that Broadway cannot be its own supervisor, and that provisions in its proposed employment agreement that appear to be to the contrary will be disapproved. For example, the proposed agreement with Broadway requires that it be indemnified as both a director and an officer.
See dkt.15, Ex.1, p.3, para. 9 (at PDF p.19)). Debtor and Broadway should be prepared to provide more information on the decision-making and oversight being proposed.
Subject to the caveats above (again, considering any arguments and evidence presented at the hearing, and possibly providing more notice before making any final decision), the tentative ruling is to authorize Broadway to act as CRO, subject to the posted Procedures of Judge Bason regarding terms of employment (e.g., notwithstanding any arbitration provision, this Court will retain jurisdiction in the first instance over any employment/compensation issues).
The tentative ruling is that the authorization for Broadway to act as CRO should include sole decision-making authority with respect to the sale of the Property, except that any proposed sale must be subject to notice and a hearing, with an opportunity for Debtor's leadership and any other parties in interest to object.
Debtor's application to employ real estate broker (dkt. 25)
Debtor proposes to employ Jones Lang Lasalle ("Broker") as its real estate broker to sell the Property. Debtor states that it has consented to Broker representing potential purchasers (dkt. 25, p. 2: 14-15).
Subject to the caveats above (again, considering any arguments and evidence presented at the hearing, and possibly providing more notice before making any final decision), the tentative ruling is to grant the motion, with the following additional caveat. Notwithstanding any provision in the employment application or proposed agreement to the contrary, the tentative ruling is that Judge Bason's standard terms apply (unless struck through) as follows:
employment is per 11 U.S.C. § 327 not § 328; (b) payment only
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per 11 U.S.C. § 330(a) – no lien or superpriority claim is allowed (except as explicitly allowed – e.g., realtor commissions on court-
approved sales); (c) maximum 2 hours per day of non-working time (e.g., travel, or waiting for matter to be called) absent an adequate explanation; (d) no buyers’ premium for auctioneers; (e) no dual agency; (f) all matters relating to the professional’s engagement, compensation and costs shall be resolved in this court, notwithstanding any provisions for arbitration, choice of venue, or the like, and (g) any indemnification, limitation of damages or the like is ineffective. See generally In re Circle K Corp., 279 F.3d 669 (9th Cir. 2002) and 11 U.S.C. § 327(a) (professionals may not "hold or represent an interest adverse to the estate").
Plan Procedures Motion (dkt. 16)
Before these hearings commence, Debtor hopes to file certain plan- related documents. As of the preparation of this tentative ruling, those documents have not been filed.
Debtor requests that it be excused from using the local forms of Plan and Disclosure Statement, and instead that it be authorized to file and serve a combined disclosure statement and plan (collectively, the "Plan"). Debtor requests authority to serve a two-page "Executive Summary" in Korean and English in lieu of serving a full copy of the Plan (but with the Plan available upon request). Debtor also requests that this Court set a combined hearing on (i) final approval of the disclosures in the Plan and (ii) confirmation of the Plan. In addition, Debtor seeks such a hearing on approximately 30 days' notice.
In sum, Debtor and requests (a) streamlined procedures and (b) expedited procedures. The tentative ruling is that the former is justified, but on the present record the latter has not been sufficiently justified.
Streamlined procedures
The tentative ruling is to excuse Debtor from using the local forms, authorize Debtor to file a combined document (the Plan), set a combined hearing on final approval of the disclosures in the Plan and confirmation of the Plan, and authorize service of the Executive Summary in lieu of the Plan but with a copy of the Plan readily available. On this last issue, the tentative ruling is that all parties in interest will actually receive greater disclosure when, instead of stacks of papers filled with dense legal language, they
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receive a short summary in "plain English" - or "plain Korean" - with easily an exercised option to review the full Plan either online or via email or U.S. mail, at the recipient's option. See 11 U.S.C. 105(d)(2)(B)(vi) (authorizing combined hearing on Plan and disclosures); 1125(b) & (c) (authorizing service of "court-approved summary" in lieu of full Plan, and disclosures "differing in amount, detail, or kind of information, as between classes"); and Rule 3017(d)
(1) (Fed. R. Bankr. P.) (reiterating option for "court-approved summary," provided that documents are made available at plan proponent's expense).
Request for a hearing on 30 days' notice
The tentative ruling is that Debtor has not provided sufficient justification for a hearing on 30 days' notice. First, the same caveats apply as with other motions: this tentative ruling is subject to any opposition at this hearing and the possible need for more notice.
Second, until the proposed documents are filed it is premature to determine whether they can be served in their proposed form, or if they need amendments (or replacements with entirely new forms).
Third, it may be problematic to confirm any Plan until the bar date for filing proofs of claim has passed, including the special bar date for governmental entities. The parties are directed to address what bar date this Court should set.
Fourth, although Debtor explains why there is some urgency - its professionals need assurance that their employment is authorized before they can be expected to devote the substantial time and effort needed to market and sell the Property - it is unclear why the Property must be sold so quickly. Presumably that has to do with cash flow issues, but those issues have not been fully explained.
For example, why is it not possible for Debtor to use funds provided by its worshipers (either regular collections or a special collection) to tide Debtor over until the Property can be sold, or some other solution can be explored, on a less expedited basis? Alternatively, why is it not possible to obtain loans (11 U.S.C. 364) or perhaps other funding mechanisms to tide Debtor over?
Subject to all of the foregoing, the tentative ruling is to grant the Plan Procedures Motion, with the date of the combined hearing on disclosures and confirmation to be determined. Deadlines for service of the voting package, filing and service of any opposition, and any other relevant matters also will need to be determined.
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Proposed orders: If this Court is persuaded at the hearing not to require additional notice, and instead to adopt the foregoing
tentative rulings in whole or in part, then Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date. The tentative ruling is that this Court will issue a "Memorialization Of Tentative Rulings" or similar document, and all lodged order should incorporate that document by reference, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/14/20.
Bar date: see part "(5)(b)" above (DO NOT SERVE notice yet -
court will prepare an order after the status conference).
Procedures order: dkt.5. This order directed Debtor to serve a copy of the order on all parties in interest. The docket does not reflect any proof of service. Why not?
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters. Status report on this Court's local form due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
8/20/19, 9/17/19, 10/15/19, 10/29/19, 12/10/19,
1/28/20
Docket 5
Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the United States Trustee ("UST") to convert, dismiss, or appoint a Chapter 11 trustee (the "UST Motion", dkt. 76)
Debtor's counsel is directed to address (i) the status of his efforts re determining the amount of tax claims and (ii) whether Debtor intends to proceeds with a structured dismissal as contemplated by this Court at the 12/10/19 and 1/28/20 hearings.
Deadlines/dates. This case was filed on 12/17/18.
Bar date: 7/24/19 (not timely served but excused, dkt. 120)
Plan/Disclosure Statement*: N/A
Continued status conference: if this case is not dismissed by then, or a continued status conference is not otherwise mooted, set a continued status conference for 5/19/20 at 2:00 p.m., with no written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior Tentative Rulings omitted]
Debtor(s):
Jackies Cookie Connection LLC Represented By
Derrick Talerico Marlee E Sherman Michael S Kogan David B Zolkin
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Adv#: 2:20-01008 Dos Cabezas Properties, LLC et al v. 110 West Properties, LLC
Docket 3
- NONE LISTED -
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
Plaintiff(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Michael Meyer Represented By Thomas F Nowland
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 60
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3): there is no automatic stay because (a) Debtor's prior case (#2:17-bk-11853-VZ) was dismissed (on 2/26/18) within one year before this case was filed (on 12/17/18), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446
B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the
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automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maricela Correa Contreras Represented By Sunita N Sood
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry Theron S Covey Eric P Enciso
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK TRUST NA
vs DEBTOR
Docket 40
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Renell Robinson Represented By Kevin Tang
Movant(s):
US Bank Trust NA Represented By Michelle R Ghidotti Kathy Watson Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN FINANCIAL CENTER INC.
vs DEBTOR
Docket 26
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling on the merits, but the tentative ruling on the evidentiary issues is as follows.
Evidentiary issues
Overrule most of Movant's evidentiary objections (dkt.31). First, Debtor as the owner of the property is competent to opine as to its value, and her knowledge of the property is sufficient foundation. Debtor's different valuation in her bankruptcy schedules, and the lack of documentary support for Debtor's current valuation, go to the weight of her testimony, not its admissibility. At the same time, Movant has not presented evidence regarding valuation.
Second, Debtor as a co-obligor can state her understanding of how the math works, including whether insurance and taxes are or are not impounded. But the tentative ruling is to sustain Movant's evidentiary objection to Debtor's assertions regarding dollar amounts alleged paid by co-obligors.
This Court notes, however, that Movant's own calculations of what is owed appear to be verified only by Movant's attorney (see dkt.26, Eropin
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Decl., p.2:6-19 & Ex.8 & 9), and not by Movant's custodian of records or other qualified invidivual (see dkt.26, Crittenden Decl.). A supplemental declaration in the reply papers (dkt.31, Crittenden Decl.) supports Movant's calculations, but Movant did not request permission to provide additional evidence in reply papers.
Although the foregoing tentative evidentiary rulings leave a lot of uncertainty, they do establish some parameters. The tentative ruling is that
at best Movant has a thin equity cushion, and (b) postpetition defaults still amount to thousands of dollars. In addition, the tentative ruling is that this Court can take judicial notice that the COVID-19 pandemic has been having a very dramatic impact on economic indicators, and that this is likely to have a negative impact on real estate values, although the extent and duration of that impact are uncertain.
Merits
The parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Birgitta Lauren Knipe Represented By Andrew P Altholz
Movant(s):
American Financial Center Inc. Represented By Anne C Manalili
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] WELLS FARGO BANK, N.A.
vs
DEBTOR
Docket 15
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
Alternatively, grant the motion under 11 U.S.C. 362(c)(3): there is no automatic stay because (a) one of Debtor's prior cases (#2:18-bk-19952-NB)
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was dismissed (on 2/25/19) within one year before this case was filed (on 2/21/20), (b) the dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained in either prior case. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rose R Ramirez Pro Se
Movant(s):
Wells Fargo Bank, N.A. Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CONSUMER PORTFOLIO SERVICES
vs DEBTOR
Docket 54
Debtor(s):
Vouaghn D Bryant Represented By Ryan A. Stubbe Thomas B Ure
Movant(s):
CONSUMER PORTFOLIO Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [PP] CAPITAL ONE AUTO FINANCE
vs
DEBTOR
Docket 45
- NONE LISTED -
Debtor(s):
Karen Elaine Firman Represented By Joseph A Weber Fritz J Firman
Movant(s):
Capital One Auto Finance, a division Represented By
Cheryl A Skigin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 33
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
Debtors' opposition was filed almost one week late, with no request that this Court accept Debtors' late papers or explanation of why they were filed late, as required by Judge Bason's posted Procedures, available at cacb.uscourts.gov. Debtors should be prepared to address why this Court should accept their late filed papers.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Elias Robert Abu Shanab Represented By Heather J Canning
Joint Debtor(s):
Sarah Rhea Abu Shanab Represented By Heather J Canning
Movant(s):
WELLS FARGO BANK, N.A. Represented By Arnold L Graff Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 39
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edwin Rolando Samayoa Represented By Steven A Alpert
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 39
- NONE LISTED -
Debtor(s):
Gabriel Lawrence Maestas Represented By
Raj T Wadhwani
Movant(s):
Toyota Motor Credit Corporation Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 38
Grant as provided below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jorge Prado Represented By
Lilian Demonteverde Hoats
Joint Debtor(s):
Aime Lizeth Prado Represented By
Lilian Demonteverde Hoats
Movant(s):
Toyota Lease Trust Represented By Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHRISTOPHER BECKER
vs DEBTOR
Docket 76
Appearances required. Pursuant to Judge Bason's COVID19 Procedures,
ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Service
The proof of service does not show service on the following parties:
Top 20 unsecured creditors
Service is required on the creditors included in the list filed pursuant to Rule 1007(d) (Fed. R. Bankr. P.), pursuant to Rules 4001(a)(1) and 9014(a).
Both Debtor's counsel and Debtor itself
Service is required not only (i) on Debtor's counsel but also (ii) on Debtor itself ("double service"), pursuant to Rules 7004(b)(9)&(g) and 9014(a)&(b). In addition, service on Debtor must be addressed to it at its address of record (listed on this Court's docket) and the address must include "Attn: Officer or Managing/General Agent" or the like. See Rule 7004(b)(3) (requiring service "to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the [debtor]").
The tentative ruling is that this Court has neither the authority nor the
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inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non-bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
Based on the foregoing, the tentative ruling is to continue this hearing
to 4/21/20 at 1:00 p.m., with corrected service and a filed proof of service required no later than 4/9/20. The tentative ruling is to shorten time (per Rule 9006) such that, if service is made on that date then the hearing can go forward on the stated date, and with any opposition papers due 4/16/20 and any reply due 4/20/20 at noon.
In the interests of efficiency and completeness, this Court now turns to the tentative ruling on the merits. The following tentative ruling is based solely on the motion papers, and is subject to change in the event of any opposition (after Debtor has re-served the motion papers).
"Cause" for relief
The motion papers state that Movant seeks a nondischargeable judgment based on alleged fraud. The tentative ruling is that this is not sufficient cause for relief. Although claims arising from fraud generally are nondischargeable for individual debtors under 11 U.S.C. 523, that section does not apply to non-individual debtors in chapter 11. See 11 U.S.C.
1141(d)(2).
That said, the tentative ruling is that there is still "cause" for relief from the automatic stay within the meaning of 11 U.S.C. 362(d)(1) for two alternative reasons that are apparent from the motion papers. (a) The nonbankruptcy litigation may resolve any disputes regarding the claims and counterclaims. In addition, (b) the nonbankruptcy litigation involves another named defendant, as well as "Doe" defendants.
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable
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notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) - inapplicable in this case - and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017)). The tentative ruling is to deny that request because there is no showing of multiple bankruptcy cases that were part of a scheme to hinder, delay, or defraud creditors, or other sufficient grounds for such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Movant(s):
Christopher Becker Represented By Shirlee L Bliss
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Docket 12
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santiago Corral Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Annayelli Marquina Represented By Jaime A Cuevas Jr.
Movant(s):
Santiago Corral Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Annayelli Marquina Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr.
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 16
Grant, subject to the conditions set forth below below including a standard stay-current adequate protection order ("APO"), and otherwise overrule the opposition (dkt.25) of Secured Creditor Louis J. Hillegass, Jr. et al.
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis:
Substantial changes in Debtor's financial affairs
Louis J. Hillegass Jr., et al. ("Secured Creditor") argues that Debtor has not rebutted the presumption that this case was not filed in good faith pursuant to 11 U.S.C. Section 362(c)(3)(C) because Debtor has not, by clear and convincing evidence, shown that there has been a substantial change in her financial affairs since the prior bankruptcy filing. Dkt. 25, p.4:11-13. The tentative ruling is to disagree.
Debtor declares, under penalty of perjury, (i) that she has resolved the regulatory issues that caused her transportation business to go through a slow-down and eventually a shut down, (ii) that in the time since the prior case was dismissed she has been able to resume operating that business, and (iii) that her monthly income has increased from $7,132.00 from the prior
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case to $8,031.00 in this case. Dkt. 16, PDF p.18, paras. 10-12. As further evidence of these assertions, Debtor attaches several exhibits to the motion.
One exhibit is the profit and loss statement from her business for the month of February 2020, during the pendency of her prior case, showing that her income from the business was $0 at that time. See dkt. 16, Ex. D, PDF
p.35. Debtor also includes evidence of the additional expenses she incurred during her prior case in order to resolve the regulatory issues. Id., Ex. C, PDF
p. 29. Debtor also attaches a copy of her Schedule I showing the new income amount. Id. at Ex. E, PDF p.37. The tentative ruling is that this evidence is clear and convincing.
In addition, Secured Creditor does not explain how an almost 13% increase in income and now being able to operate a business does not constitute a "substantial" change in Debtor's financial affairs, or how Debtor's evidence is not "clear and convincing." Secured Creditor simply concludes that Debtor has not met her burden.
True, Debtor's reply states that the California COVID-19 orders have reduced Debtor's ability to earn income (to an uncertain extent). See dkt. 27, p.3:19-23. But this Court cannot presume that Debtor knew, when she filed her bankruptcy petition on 3/13/20, or even today, that whatever might be the temporary or long term effects of the disease would necessarily eviscerate the positive changes in her financial affairs.
In sum, the tentative ruling is that Debtor has shown a substantial change in her financial affairs by clear and convincing evidence.
Chapter 13 Plan
Secured Creditor argues that, because of the history of Debtor's prior chapter 13 case including an APO under which Debtor defaulted and several plan modifications, Debtor's current plan has not been proposed in good faith. See id. pp.2:8-3:4 & pp.3:22-4:8. Secured Creditor also argues that Debtor's proposed Chapter 13 plan, intended to last five years, would allow Debtor to circumvent the Congressional intent behind the five year limitation for Chapter 13 reorganization. Dkt. 25, p.4:4-8 & 16-19. Secured creditor cites In re Huerta, 137 B.R. 356 (Bankr. C.D. Cal. 1992). See id. p.4:4-8.
First, although this is not a confirmation hearing, the tentative ruling is that it is appropriate to take judicial notice of Debtor's proposed plan and assess whether it has obvious hallmarks of not having been proposed in good faith. The tentative ruling is that there is nothing in the plan of that nature.
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Second, this Court respectfully disagrees with much of Huerta. On the principal issue for which Secured Creditor cites Huerta, it has been criticized by the Bankruptcy Appellate Panel of the Ninth Circuit ("BAP"). Although there are decisions supporting the proposition that the 60-month period for repaying creditors should run from the first Chapter 13 filing, "neither Section 1322(c) nor the legislative history conditions the time limitation of Section 1322(c) in the event of multiple filings." In re Martin, 156 B.R. 47, 51 (9th Cir. BAP, 1993). The total duration is certainly relevant, but not dispositive.
In addition, Debtor proposes to convert her case to Chapter 11. If such conversion occurs, there is no per se 60-month limit, although again the total time creditors must await repayment is certainly relevant. See dkt. 27, p.3:24-25.
In fact, a debtor's willingness to endure the hardships of devoting all disposable income to creditors for a longer duration than 60 months, despite temporary setbacks, can be all the more evidence of good faith. Debtor's negative changes in financial circumstances during her prior case were unfortunate but not evidence of bad faith, and her subsequent positive change in financial circumstances is evidence that her plan is proposed in good faith.
The tentative ruling is that Debtor's clear and convincing evidence of good faith overcomes any contrary inference arising from a total duration of over 60 months, on one condition. Debtor must be prepared to limit Secured Creditor's risk and expense, in the event of any future defaults, by entering into a standard stay-current APO.
The standard terms include 14 days after a notice of default to cure any default under the APO, with a maximum of three opportunities to fall into default and then cure under the APO. The tentative ruling is to direct Secured Creditor to lodge a proposed APO within seven days after this hearing.
Alleged "res judicata" effect of prior adequate protection order Secured Creditor cites Huerta for the proposition that "in serial Chapter
13 cases, it has been held that an [APO] in a prior case has res judicata
effect." Dkt. 25, p.4:9-10. First, it is not clear exactly what this means.
Is Secured Creditor arguing that termination of the automatic stay is mechanically required any time there are successive bankruptcy cases? If that is what Congress meant, surely it would have said so; and to the contary
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in section 362(c)(3) and (4) Congress provided detailed guidelines for determining when the automatic stay does or does not terminate when successive cases are involved.
More likely Secured Creditor means that some or all findings of fact or conclusions of law that resulted in the prior APO are "law of the case" or are claim preclusive or issue preclusive in some way. That might be so, but the tentative ruling is that the burden is on Secured Creditor to show precisely how principles of preclusion apply. For example, if proceedings leading up to the prior APO involved findings of fact as to the value of property as of a certain date, that would be preclusive (if that date remains relevant); but there is no such showing.
In addition, this Court notes that Huerta cites In re Abdul-Hasan, 104
B.R. 263 (Bankr. C.D. Cal. 1989) regarding the "res judicata" effect of an APO. Huerta, 137 B.R. 356 at 373. But Abdul-Hasan involved an APO with the following language: "Respondent(s)/Debtor(s) shall be bound by this Order ... in any subsequently filed bankruptcy proceedings of any nature whatsoever ..." Abdul-Hasan, 104 B.R. 263 at 264 (emphasis added). By contrast, the APO between Secured Creditor and Debtor in Debtor's prior Chapter 13 case did not include any such language. See 2:18-bk-19763-NB, dkt. 50.
The tentative ruling is that the prior APO between Secured Creditor and Debtor has not been shown to have any relevant "res judicata" or preclusive effect in the instant case.
Standard conditions
The following are the standard conditions of Judge Bason when issuing orders granting relief under section 362(c)(3). After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements
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are made per Judge Bason's posted procedures), and (c) may
present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Migan Murray Represented By Andrew Moher
Movant(s):
Migan Murray Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 3/3/20
Docket 15
Tentative Ruling for 4/7/20:
Grant in part, on the same conditions as in this Court's prior interim order (dkt.54), and continue to 4/21/20 at 10:00 a.m., for the reasons set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (other than the motion and opposition papers): Jacob and Maryam Haiavy Motion To Approve Stipulation For Adequate Protection, Use Of Cash Collateral And Relief From Stay On Second Lien Secured By Real Property Located At 3775 Ruthelen Street, Los Angeles, CA 90018 (the "Proposed Stipulation," dkt. 81).
The tentative ruling is to temporarily continue the automatic stay as to the 3775 Ruthelen Street property, through the continued hearing on 4/21/20 at 10:00 a.m., to (i) determine whether any oppositions or a request for a hearing will be filed as to the Proposed Stipulation (dkt. 81), and (ii) should no opposition or request for a hearing be filed, and if this Court finds no issues with the Proposed Stipulation, to permit time for an order to be lodged and
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issued on the Proposed Stipulation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Grant in part, and continue in part to 4/7/20 at 10:00 a.m., subject to the following conditions. Appearances are not required.
The tentative ruling is (1) temporarily to continue the automatic stay as to the 3775 Ruthelen Street property, through the continued hearing on 4/7/20 at 10:00 a.m., to permit the parties time to obtain an appraisal of the property (see dkt. 35, pp.2-3, and dkt. 36), and assess Debtor's progress in this case, and meanwhile (2) to grant the motion as to all remaining property of the Debtor's bankruptcy estate, such that the automatic stay applies to all such property.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited rulings. This Court's tentative ruling is that any finding of "good faith" is (a) solely for purposes of this motion and
(b) as to the 3775 Ruthelen Street property, solely on the limited basis set forth at the start of this tentative ruling. In other words, any good faith finding by this Court is not intended to have any binding effect with respect to the existence or lack of existence of good faith beyond the foregoing very limited rulings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
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HSBC BANK USA
vs DEBTOR
Docket 60
Debtor(s):
Edward Jenkins Jr. Represented By Thomas B Ure
Joint Debtor(s):
Iris Michele Hearn-Jenkins Represented By Thomas B Ure
Movant(s):
HSBC Bank USA, National Represented By Kelsey X Luu Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILMINTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 75
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's supplemental declaration (dkt. 83).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20 (same as for 2/4/20):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought
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current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Wilmington Trust, National Represented By Robert P Zahradka Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to finalize the terms of an adequate protection agreement. There is not tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
Appearances required. This matter was continued to this date to allow time
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for the parties to review Debtor's payment history. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
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DEUTSCHE BANK TRUST COMPANY
vs DEBTOR
Docket 39
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court was persuaded to continue the matter to this date at the request of the parties to allow time for Debtor to pursue refinance efforts. This Court has reviewed Debtor's status report (dkt. 50), which requests a further 30-day continuance to finalize a reverse mortgage. There is no tentative ruling, but Movant should be prepared to address whether it will consent to a further continuance.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/3/20:
Appearances required. This Court was persuaded to continue the matter to this date at the request of the parties to allow time for Debtor to pursue refinance efforts. This Court is aware of Debtor's motion to continue this hearing (dkt.46), but that request will be addressed at the hearing.
There is no tentative ruling, but the parties should be prepared to address (a) the status of any refinance efforts, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janie B. Tatum Represented By Michael F Chekian
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Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Sean C Ferry Keith Labell Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01018 Acossano et al v. INTERNAL REVENUE SERVICE et al
Docket 1
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (adv. dkt. 9) and the other filed documents and records in this adversary proceeding.
Current issues
Status Report
As of the preparation of this tentative ruling, Defendant FTB has not filed a joint or unilateral status report. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant
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"believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 1/31/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 8/4/20 Expert(s) - deadline for reports: 8/11/20
Expert(s) - discovery cutoff (if different from above): 8/18/20 Dispositive motions to be heard no later than: 9/29/20
Joint Status Report: 9/15/20
Continued status conference: 9/29/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/27/20 Pretrial conference: 11/10/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 11/10/20 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 11/16/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martin Joseph Acossano Represented By Kevin T Simon John D Faucher
Defendant(s):
INTERNAL REVENUE SERVICE Represented By
John D Ellis
FRANCHISE TAX BOARD Represented By Brian D Wesley
Joint Debtor(s):
Denise Lorraine Acossano Represented By Kevin T Simon John D Faucher
Plaintiff(s):
Martin Joseph Acossano Represented By John D Faucher
Denise Lorraine Acossano Represented By John D Faucher
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 1
Tentative Ruling for 4/7/20:
Take this matter off calendar in view of the parties' stipulation (dkt. 40) and entry of an order for relief (dkt. 41, 42, 43). Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the parties' joint status report (dkt. 24) and the other
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filed documents and records in this involuntary bankruptcy case.
Current issues
Cynthia Cohen, Esq. and Theodore Sanos, Esq. ("Petitioning Creditors"), filed an involuntary petition against alleged debtor, Samini Cohen Spanos LLP, on 1/3/20. Non-petitioning partner Babak (Bobby) Samini filed a timely answer on 1/24/20 denying the Petitioning Creditors' allegation that the alleged debtor generally is not paying its debts as such debts become due (unless such debts are the subject of a bona fide dispute as to liability or amount) (dkt. 18). The tentative ruling is to continue this status conference to the time and place set forth below, to allow time for the parties to conduct discovery and start to address the above issue.
This Court also notes that Mr. Samini requests damages pursuant to 11 U.S.C. 303(i) (dkt. 18). The tentative ruling is that it is premature to set any discovery cut-off deadlines, or any other related deadlines, on this issue at this time (prior to a determination whether or not to issue an order for relief).
This Court also notes that Mr. Samini's Answer asserts various affirmative defenses, which appear either to constitute alleged grounds for dismissal (the first, second, and fourth affirmative defenses) or to be the same as the elements under 11 U.S.C. 303(h)(1) (the third affirmative defense). The tentative ruling is to bifurcate and defer the asserted affirmative defenses until after addressing the elements of section 303(h)(1).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/25/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
The tentative ruling is to proceed toward trial on the elements of
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section 303(h)(1) simultaneous with any mediation. Pursuant to LBR
9021-1(b)(1)(B), Petitioning Creditors are directed to lodge a proposed order via LOU within 7 days after this status conference, attaching a copy of this tentative ruling and adopting the following dates/deadlines related to a trial on the elements of section 303(h)(1).
Discovery cutoff (for completion of discovery): 3/30/20 Expert(s) - deadline for reports: 3/16/20
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 5/5/20 Joint Status Report: 3/24/20
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 5/7/20 at noon Pretrial conference: 5/12/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 5/22/20 at noon (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 5/26/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Samini Cohen Spanos LLP Represented By Robert P Goe
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
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fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19, 2/4/20
Docket 43
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
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Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Cont'd hrg re: Motion for Dismissal and Other Related Sanctions Against Plaintiff Twisted Oliver Holdings, LLC fr. 01/02/20, 2/5/20, 02/18/20
Docket 22
Tentative Ruling for 4/7/20:
Continue to 6/2/20 at 11:00 a.m. so that the parties can finalize their settlement. Appearances are not required, on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/19/20:
Appearances required. There is no tentative ruling, but the parties should be
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prepared to address whether to set a further continued hearing date regarding the issues discussed at the hearing on 2/5/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Movant(s):
Charles S Dickens Represented By
Eric Bensamochan
Charles S Dickens Pro Se
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker Joseph Chora
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
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Docket 26
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
The parties have briefed the standards applicable to an award of attorney fees and costs. This tentative ruling does not repeat those standards, but focuses on some disputed issues.
Request for continuance
In their opposition, Mr. David MacMillan and Mr. William Brownstein, Esq. (collectively "Respondents") request a continuance of this hearing on the Motion Of Wyndham Vacation Resorts, Inc. For Sanctions (the "Sanctions Motion," dkt. 26) because due to the COVID-19 pandemic (i) Mr. Brownstein has been unable to meet and confer with Mr. MacMillan and (ii) Mr.
Brownstein has had computer trouble that he has been unable to resolve and that computer has information which may aid Mr. Brownstein in establishing that the filing of the Timeshare Relief, Inc. ("Timeshare") bankruptcy case was not in bad faith. Dkt. 37, p.16:5-14.
The tentative ruling is that neither argument is persuasive. First, as to the inability to meet and confer, Mr. Brownstein has not established any reason why he could not communicate with Mr. MacMillan over the phone or
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via other technology. Second, any evidence probative of whether the Timeshare bankruptcy was filed in bad faith is presently irrelevant. This Court has already ruled (dkt. 34) that sanctions must be awarded. A continued hearing was set on the Sanctions Motion only to determine the amount of sanctions. To the extent that there are grounds for reconsideration, Mr.
Brownstein can file an appropriate motion.
Local rule regarding form of fee applications for estate's professionals
In their opposition, Respondents argue that the requested fees should be disallowed because Wyndham’s counsel has not complied with LBR 2016-1(a)(1)(H) (Local Bankruptcy Rule). See dkt. 37, p.3:15-16.
The tentative ruling is that this argument is not persuasive. As explained in the reply, LBR 2016-1, by its terms, does not apply to sanction fee awards, but applies to professionals who are employed by the estate.
See dkt. 39, p.4:4-20.
Nevertheless, on one issue this Court is persuaded that the local rules provides a useful guideline. Wyndham is directed to file a declaration authenticating resumes for all individuals who are listed as having performed the work at issue - except for Mr. Daniel Eliades, Esq., because this Court is familiar with his legal expertise based on the arguments he has made in court throughout this bankruptcy case, and the papers he has filed and that this Court has reviewed. The content of the resumes should be as follows:
A description of the professional education and experience of each of the individuals rendering services, including identification of the professional school attended, year of graduation, year admitted to practice, publications or other achievements, and explanation of any specialized background or expertise in bankruptcy-related matters. [LBR 2016-1(a)(1) (H)]
The remainder of this tentative ruling presumes, solely for purposes of discussing the other issues presented, that the hourly rates charged by the listed professionals will not be reduced. If they are reduced, then further adjustments will need to be made to this Court’s figures below.
Clerical matters
In their opposition, Respondents object to several time entries on the basis that the work performed is clerical in nature. See, e.g., dkt. 37,
p.7:9-12.
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It is well established that it is inappropriate to bill at attorneys' hourly
rates for matters that are clerical in nature. For example, filing and serving papers typically is clerical because it does not take a law degree to stuff envelopes or to e-file.
But sometimes it does take an attorney - and an experienced one at that - to sort out the complex rules and procedures in bankruptcy cases, even for such ordinary matters as service of papers. See, e.g., In re State Line, 323 B.R. 703, 710-13 (9th Cir. BAP 2005) (2-1 decision that service of claim objections is governed by Rule 3007 not Rules 7004 and 9014(b) (Fed. R. Bankr. P.); citing contrary authorities from other jurisdictions) (Rule 3007 has been amended, subsequent to this decision; but the point is that even on such basic matters as service the rules may require an attorney's analysis), vacated and remanded as moot, 2007 WL 1961935.
This Court has used its discretion to reduce fees for some matters that appear to be primarily clerical. This Court has also used its discretion not to disallow fees on other matters that, although arguably are somewhat clerical, appear on balance to warrant billing at attorney rates.
Multiple attorneys, and allegedly duplicative work
In their opposition, Respondents object to several time entries on the basis that the work performed by one attorney constitutes "a duplicate of efforts" by another attorney. See, e.g., dkt. 37, p.5:24-27.
The tentative ruling is that those objections are not persuasive. It is generally acceptable for multiple attorneys to work on the same issue or motion. In fact, sometimes it is far more efficient to delegate work, even though it takes time to explain the relevant issues to a lower billing rate attorney, because ultimately the total bill will be less than if the higher biller did everything. In addition, emails and telephone conferences can be effective, because two (or more) heads can be better than one. Of course, it is a matter of appropriate discretion: delegation and conferences sometimes are wasteful. Attorneys are expected to use sound billing judgment, and this Court scrutinizes fee applications for such matters. But there is no presumption that time must be disallowed just because multiple attorneys are involved.
Clumping, and other bankruptcy-specific rules
In their opposition, Respondents argue that the requested fees should be disallowed because Wyndham’s counsel has violated LBR 2016-1(a)(1)(E)
by lumping multiple services together. See dkt. 37, p.3:18-19.
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As set forth above, LBR 2016-1 does not apply to sanction fee awards.
In addition, it would be inappropriate to apply bankruptcy-specific rules retroactively to professionals who were billing their clients, not the estate. For example, time need not always be billed in tenths of an hour; records need not be exactly contemporaneous; and some clumping is to be expected.
Nevertheless, it is only appropriate for Wyndham’s counsel to bill for the matters on which sanctions have been awarded. So, when clumping occurs, this Court must award only the portion of the fees that appear to be attributable to the sanctioned matters.
Wyndham’s failure to stipulate to a dismissal of the TSR bankruptcy
case
In their opposition, Respondents argue that "any sanctions for filing the
TSR bankruptcy case[] should be cut off at the time that Respondents agreed to a dismissal on 11/17/19 …" DKt. 37, p.9:11-13. The tentative ruling is that this argument is not persuasive.
The Sanctions Motion explains that Wyndham notified Respondents in a demand letter that the TSR bankruptcy petition was improper and demanded dismissal of the TSR bankruptcy case. Dkt. 26, p.2:17-21. The Sanctions Motion states in relevant part
… after WVR had filed the Motion to Dismiss, Brownstein offered to stipulate to dismissal of the TSR bankruptcy case. … Counsel to WVR promptly responded that WVR would agree to resolve the Motion to Dismiss by way of a stipulation which dismissed the TSR bankruptcy case and reimbursed WVR for its legal fees and costs in connection with preparation of the motion … Brownstein never responded to that offer… [Dkt. 26, p.2-3, n.1]
Respondents’ opposition to the Sanctions Motion does not dispute the above quoted language. See generally dkt. 30. The tentative ruling is that it is reasonable for Wyndham not to stipulate to dismissal of the Timeshare bankruptcy case if Wyndham was going to be responsible for attorney’s fees that should not have been incurred.
Application of the foregoing tentative rulings to the bills presented Based on the above, the tentative ruling is that it is appropriate to
sustain the Respondent’s objections in part, and reduce Wyndham’s counsel’s requested fees by $3,305.25, broken down as follows:
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10/26/19, J.M. VanDerWeert (dkt. 36 at PDF p.19) – Reduce by 0.1 hours ($17.50) because e-filing is clerical in nature, and this entry bills for clumped services. See dkt. 37, p.7, para. k.
10/27/19, D.M. Eliades (dkt. 36 at PDF p.19) – Reduce by 0.1 hours ($42.50) because reviewing a notice of address change is clerical in nature. See dkt. 37, p.7, para. l.
11/12/19, D.M. Eliades (dkt. 36 at PDF p.20) – Reduce by 0.25 hours ($106.25) because reviewing the Trustee’s turnover motion is not related to the matters on which sanctions have been awarded. See dkt. 37, p.8, para. r.
11/15/19, J.M. VanDerWeert (dkt. 36 at PDF p.20) – Reduce by 0.4 hours ($70.00) because e-filing is clerical in nature, and this entry bills for clumped services. See dkt. 37, p.8, para. t.
12/16/19, D.M. Eliadies (dkt. 36 at PDF p.22) – Reduce by 1.68 hours ($714.00) because only one of the five motions that were prepared for is related to the matters on which sanctions have been awarded, this
entry bills for clumped services, and most of the matters on for hearing for 12/17/19 were related to the substantive consolidation motions.
See dkt. 37, p.10., para. ff.
12/17/19, D.M. Eliades (dkt. 36 at PDF p.22) – Reduce by 2.4 hours ($1,020.00) because only one of the five motions that counsel appeared for is related to the matters on which sanctions have been awarded, this entry bills for clumped services, and the majority of the hearing was spent discussing issues related to the substantive consolidation motions. See dkt. 37, p.10, para. gg.
12/19/19, C. Conklin (dkt. 36 at PDF p.23) – Reduce by 0.3 hours ($88.50) because reviewing a formatted order and coordinating filing an order are clerical in nature. See dkt. 37, p.11, para. ll.
12/19/19, D.M. Eliades (dkt. 36 at PDF p.23) – Reduce by approximately 2.2 hours ($940.00) because only one of the five drafted orders are related to matters on which sanctions have been awarded, and this entry bills for clumped services. See dkt. 37, p.11, para. mm.
12/20/19, C. Conklin (dkt. 36 at PDF p.23) – Reduce by 0.3 hours ($88.50) because coordinating the filing of the order granting the motion to dismiss and reviewing the notice closing the TSR bankruptcy
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case are clerical in nature. See dkt. 37, p.12, para. nn.
12/23/19, T. Powers (dkt. 36 at PDF p.23) – Reduce by 0.4 hours ($148.00) because the research occurred after this Court's ruling on the MTD and therefore does not appear to be related to matters on which sanctions have been awarded. See dkt. 37, p.12, para. pp.
12/23/19, J.M. VanDerWeert (dkt. 36 at PDF p.24) – Reduce by 0.4 hours ($70.00) because e-filing is clerical in nature, and this entry bills for clumped services. See dkt. 37, p.12, para. rr.
Conclusion
The tentative ruling is to award Wyndham/K&L Gates LLP $32,204.25 in fees and $0 in costs, payable jointly and severally by Mr. Brownstein and Mr. MacMillan (see dkt. 34, p.2:10-14) within 10 days of entry of an order granting the Sanctions Motion. The funds must be payable as instructed by K&L Gates LLP (e.g., whether the payee is Wyndham or K&L Gates LLP, and the delivery address for any check).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
TIMESHARE RELIEF, INC. Represented By
William H Brownstein
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Wesley H Avery (TR) Pro Se
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1/14/20, 01/28/20, 2/4/20, 02/18/20
Docket 43
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the
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MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
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Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
Docket 11
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Defendants' Motion to Dismiss Trustee's Complaint (2:19-ap-01517-NB, the "MTD," adv. dkt. 11) and Trustee's Opposition (adv. dkt. 15)
The tentative ruling is to deny the MTD for the reasons set forth below.
(1) Legal standards
Rule 8(c) provides in relevant part:
Affirmative Defenses
In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: ... statute of limitations ... [Rule 8(c)(1) (Fed. R. Civ. P., made applicable by Rule 7008, Fed. R. Bankr. P.)]
Rule 12 provides in relevant part:
(b) How to Present Defenses. Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
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...
insufficient process;
insufficient service of process;
failure to state a claim upon which relief can be granted [Rule 12(b)(4)-(6) (Fed. R. Civ. P., made applicable by Rule 7012, Fed. R. Bankr. P.)]
Analysis
Service against Erica Martin was effective
Defendants argue that the Trustee's complaint should be dismissed as to Erica Martin pursuant to Rule 12(b)(4)&(5) because she was not properly served. See adv. dkt. 11, p.2:16-17; p.11:9-12. In his opposition, the Trustee states that he will effect proper service on Erica Martin. Adv. dkt. 15,
p.3:13-15.
At the hearing on 2/18/20 this Court heard oral argument on the MTD. Mr. Dumas stated that Mr. Brownstein accepted service on behalf of Erica Martin. Mr. Brownstein stated that while he had agreed to accept service on behalf of Erica Martin, he had not received the summons and complaint specifically directed to her, and thus had not filed a reply to the Trustee's opposition. In addition, Mr. Brownstein stated that he had had the flu, and requested that the hearing on the MTD be continued so that he could have time to file a reply to the Trustee's opposition.
This Court orally ruled that Mr. Dumas' argument was more persuasive on the issue of service, but continued the hearing to today because of Mr.
Brownstein's illness, with a deadline of 3/10/20 for Mr. Brownstein to file a reply. No reply has been filed. Accordingly, this Court re-adopts its oral ruling that service was effective.
Defendants have not established that, as a matter of law, the claims are time barred
Defendants argue that the Trustee's complaint should be dismissed pursuant to FRCP 12(b)(6) because the claims are time barred pursuant to 11
U.S.C. Section 546 and Cal. C.C.P. 336 & 337. Adv. dkt. 11, p.8:19-28. In his opposition, the Trustee explains persuasively that Section 546 is not relevant to the issues raised in the MTD, and that Cal. C.C.P. 336 and 337 do not apply to the Trustee's claims. Adv. dkt. 15, pp. 4:26-5:14. The Trustee acknowledges, however, that a different statute of limitations/repose applies: section 3439.09 of the California Civil Code regarding voidable transfers, and
11:00 AM
(if that somewhat recently enacted statute does not apply) section 338 of the California Code of Civil Procedure.
The statute of limitations is an affirmative defense under FRCP 8(c), and generally cannot be raised in a FRCP 12(b)(6) motion to dismiss. But "if the running of the statute is apparent on the face of the complaint, the defense may be raised by a motion to dismiss." Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). On a motion to dismiss for failure to state a claim, this Court must accept all factual allegations as true, but "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The Trustee's complaint alleges that there are creditors of Attitude that "did not know and could not reasonable have known about the transfer or the role that Martin and Chaffin played in the transfer within one year of the bankruptcy filing" that served as the basis for the Trustee's complaint. Adv. dkt. 1 at PDF p.9, para. 23. Whether or not creditors knew or could have known about the conduct is a factual allegation. If taken as true, the statute of limitations for the asserted claims would be tolled under the Trustee's cited California Civil Code sections. Thus it is not clear from the face of the Trustee's complaint that the statute of limitations has run on the Trustee's claims, and the MTD has not established that as a matter of law the claims are time barred.
Conclusion
For the reasons set forth above, the tentative ruling is to deny the
MTD.
Proposed order: Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
11:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Movant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
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Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
fr. 3/3/20
Docket 1
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service re another summons (adv. dkt. 16)
In response to the Defendants' argument in their Motion to Dismiss (adv. dkt. 11) that Erica Martin was not served with the Trustee's Complaint (adv. dkt. 1), the Trustee stated that Erica Martin would be served with a new summons. Adv. dkt. 15, p.3:13-15. Another summons was issued on 2/4/20 (adv. dkt. 16) and at the hearing on 2/18/20 the Trustee represented that this summons had been served; but as of the drafting of this tentative ruling, no written proof of service has been filed on the docket. The Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint
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checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The new summons provides that the parties were required to file a joint status report no later than 14 days before this status conference (3/24/20).
As of the drafting no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
Failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
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Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
11:00 AM
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
1/14/20, 01/28/20, 2/4/20, 02/18/20
Docket 332
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Glossary
For consistency in orders and decisions - past and future - this Court will attempt to use the following abbreviations. This Court intends to memorialize these abbreviations on the docket after this hearing date.
Parties
David MacMillan ("MacMillan") Cynthia Barrett Martin ("Martin")
William Brownstein, Esq. ("Brownstein") Erica Martin ("Erica Martin")
Glenn Chaffin ("Chaffin") David Karen, Esq. ("Karen")
Attitude Marketing, Inc. ("Attitude")
Wyndham Vacation Resorts, Inc. ("Wyndham") Aston Business Solutions, Inc. ("Aston") Accelerated Capital Group, Inc. ("Accelerated")
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Trustee Rosendo Gonzalez ("Trustee") Florance Communications, Inc. ("Florance") Timeshare Relief, Inc. ("Timeshare")
Proceedings
In re David MacMillan, 2:16-bk-21559-NB ("MacCase")
In re Cynthia Barrett Martin, 2:17-bk-11588-NB ("MartinCase")
In re Attitude Marketing, Inc., 2:19-bk-10552-NB ("AttitudeCase") In re Timeshare Relief, Inc., 2:19-bk-22321-NB ("TimeshareCase") Wyndham Vacation Resorts, Inc. v. David MacMillan and Cynthia
Barrett Martin, 2:17-ap-01229-NB ("Wynd-Mac-Adv")
Wyndham Vacation Resorts, Inc. v. Cynthia Barrett Martin, 2:17- ap-01551-NB ("Wynd-Martin-Adv")
Rosendo Gonzalez v. David W. MacMillan et al., 2:17-ap-01545-NB ("Trustee-Adv")
Rosendo Gonzalez v. Aston Business Solutions, Inc. et al., 2:19- ap-01517-NB ("Trustee-Aston-1")
Rosendo Gonzalez v. David Karen and DK Law Group, LLP, 2:19- ap-01156-NB ("Trustee-Karen-Adv")
Rosendo Gonzalez v. David W. MacMillan and Cynthia B. Martin, 2:17- ap-01485-NB ("Trustee-Mac-Adv")
Rosendo Gonzalez v. Aston Business Solutions, Inc. et al., 2:19- ap-01516-NB ("Trustee-Aston-2")
Rosendo Gonzalez v. David M. Karen, 2:19-ap-01156-NB ("Trustee- Karen-Adv")
Calendaring
Continue the following matters to 5/12/20 at 11:00 a.m., with no status reports required:
Status Conf., AttitudeCase (calendar no. 6, 4/7/20 at 11:00 a.m.) Status Conf., Trustee-Aston-1 (calendar no. 8, 4/7/20 at 11:00 a.m.) Status Conf., MacCase (this calendar no. 9, 4/7/20 at 11:00 a.m.) Status Conf,, Trustee-Karen-Adv (calendar no. 11, 4/7/20 at 11:00
a.m.)
Status Conf., Trustee-Aston-2 (calendar no. 12, 4/7/20 at 11:00 a.m.)
Current issues
Wyndham's Motion For Sanctions (TimeshareCase, Case No. 2:19-
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bk-22321-NB, dkt. 26), (see also dkt. 30, 31, 32, 36, 37, 39)
Award Wyndham/K&L Gates LLP $32,204.25 in fees and $0 in costs, payable jointly and severally by Mr. Brownstein and Mr. MacMillan (see dkt. 34, p.2:10-14) within 10 days of entry of an order granting the Sanctions Motion, for the reasons stated in the tentative ruling for calendar no. 5 (4/7/20 at 11:00 a.m.).
Defendants' Motion to Dismiss Trustee's Complaint (Trustee-Adv-2, 2:19-ap-01517-NB, the "MTD," adv. dkt. 11) and Trustee's Opposition (adv. dkt. 15)
Deny the MTD for the reasons set forth in calendar no. 7 (4/7/20 at 11:00 a.m.).
Order to Show Cause (the "OSC," MacCase, Case No. 2:16- bk-21559-NB, dkt. 428)
This Court issued the OSC; Florance did not respond. The docket and records of prior hearings reflect continuances to assess what documents Florance belatedly produced. The docket does not reflect any further activity.
The tentative ruling is to direct Wyndham, within seven days after this hearing date, to lodge a proposed order holding Florance in contempt, but not to take any further action at this time, and to reserve jurisdiction in the event that any party in interest seeks further relief on this matter (e.g., sanctions, or evidentiary presumptions based on any failure to produce discovery).
Meanwhile, the tentative ruling is to take this matter off calendar.
NB)
Status Conference: Trustee-Karen-Adv (Case No. 2:19-ap-01156-
At the 2/18/20 hearing, this Court continued this status conference to
ensure that the order approving the parties' settlement would be issued. While an order approving the settlement was issued in the AttitudeCase (2:19-bk-10552-NB, dkt. 142), no separate order was lodged providing for dismissal of the adversary proceeding.
The tentative ruling is to continue this status conference as set forth above in section "(2)" of this tentative ruling to ensure that a proposed dismissal order is lodged by the Trustee in the Trustee-Karen-Adv. If such an order is issued, the continued hearing on this status conference will come off calendar.
11:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
[No tentative ruling was posted for 1/14/20 or 2/18/20] [PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
11:00 AM
fr. 12/10/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 02/18/20
Docket 428
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
11:00 AM
Peter J Mastan (TR) Pro Se
11:00 AM
Adv#: 2:19-01156 Gonzalez v. Karen et al
fr. 7/30/19, 9/24/19, 10/29/19, 12/10/19, 12/17/19, 1/14/20, 02/18/20
Docket 1
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Continue to 2/18/20 at 2:00 p.m. for the parties to document their settlement (see Mediator's report, adv.dkt.28) and, if necessary or appropriate, file a motion for approval of their settlement under Rule 9019 (Fed. R. Bankr. P.) or any other appropriate papers. Appearances are not required on 1/14/20.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David M. Karen Represented By Keith S Dobbins
DK Law Group, LLP Represented By Keith S Dobbins
11:00 AM
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
11:00 AM
Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
fr. 3/3/20
Docket 1
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint? If so, Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
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The summons provides that the parties must file a joint status report
no later than 14 days before the hearing (3/24/20). Adv. dkt. 2, p.2. As of the drafting of this tentative ruling, no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. If the summons and complaint have been served then failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v.
Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since
11:00 AM
12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Preliminary Issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and
11:00 AM
complaint?
Status report
The summons (adv. dkt. 2) provides that a joint status report must be filed by the parties no later than 14 days prior to the status conference (2/18/20). As of the drafting of this tentative ruling, no status report has been filed.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Standard Issues
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
11:00 AM
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/24/20.
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By
11:00 AM
Trustee(s):
James A Dumas Jr
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
1:00 PM
Docket 6
Appearances required by counsel for the debtor and by the debtor themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Lack of prosecution of this case
Debtor's status report suggests that no budget motion is required, despite the fact that the posted Procedures of Judge Bason require one (see www.cacb.uscourts.gov under Judges). Debtor explains that "[n]o rents have been collected and we don't know if the tenant is going to pay" and "[e] xpenses are minimal and go to upkeep." Dkt.27, p.3, item B.2.
If the tenant is not paying rents, why do the Status Report and the docket not reflect efforts to evict the tenant and/or collect the rent? In addition, if there is a tenant, why does the Status Report state (dkt.27, p.7) that there are no leases? If there is no written lease, and the tenancy is month-to-month, that should have been explained, and it would seem to be all the more reason why the tenant promptly should either pay rents or be evicted. It has already been nearly a month since the petition date of 3/9/20, with no apparent action.
The tentative ruling is to set a deadline of 4/10/20 for Debtor to file a declaration addressing the foregoing issues.
Schedules I and J are deficient (dkt. 17)
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Debtor's Schedule I identifies $11,000 in monthly rental income from
the Robin Drive property, but Debtor did not attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income (as expressly required by line 8a) - e.g. mortgage payments, real property taxes, insurance, maintenance. Even if those things are not currently being collected/paid, the form directs Debtor to state whether there is any anticipated change in future, and the tentative ruling is to direct Debtor to set forth in detail her projections for all of these things.
Additionally, Debtor's Amended Schedule J is virtually blank. Debtor explains that all of Debtor's expenses are being paid by Medicare, but (a) Debtor does not identify any medicare income on Schedule I and (b) that still does not explain the failure to list whatever expenses are being paid on Debtor's behalf.
The tentative ruling is that Debtor is directed to file amended schedules I and J no later than 4/10/20.
Schedule D (dkt.17, at PDF pp.21-22)
Debtor apparently assumes that she has a 100% chance of succeess in her nonbankruptcy litigation, because she asserts that there are no liens at all on her Robin Drive property. The tentative ruling is that this is flagrantly contrary to Debtor's obligation to list all claims, even if those claims are disputed (or contingent, or unliquidated). The tentative ruling is to set a deadline of 4/10/20 for Debtor to file an amended Schedule D listing the disputed lien and its dollar amount.
Proposed special counsel, and cost/benefit analysis
The tentative ruling is to set for hearing Debtor's application to employ special counsel, the objection thereto, and the amended application (see dkt. 26, 28, 29). The tentative hearing date is concurrent with the continued status conference (see part "(2)" below).
As this Court understands the pending nonbankruptcy litigation, several actions have been designated as "related" by the State Court(s), and there is a pending appeal that is set for oral argument later this month. The principal issue appears to be whether a mortgagee's deed of trust, that at least initially had an incorrect and/or missing property description, was sufficient to create (a) a lien as against Debtor and (b) inquiry or other effective notice as against third parties, when it is undisputed that the deed of
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trust was recorded in the real estate records, and when presumably it was included in the grantor/grantee index under Debtor's name. It appears that the trial court(s) have ruled against Debtor.
With this background, this Court reminds Debtor and her general bankruptcy counsel that, given Debtor's duties as a trustee for the benefit of creditors, she has an obligation to make a cost/benefit analysis regarding the litigation, and also has a duty to monitor proposed special counsel. This Court notes that proposed special counsel is not disinterested - she has a substantial prepetition claim - and although there is no requirement in 11
U.S.C. 327(e) of disinterestedness, there is still a requirement that proposed special counsel not "hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed."
In addition, this Court takes judicial notice that, depending on the facts (which are unknown to this Court), sometimes debtors have nothing to lose by pursuing "long shot" litigation, but creditors have everything to lose. For example, a hypothetical debtor might have little or nothing to lose if they are already insolvent, because either the value of their property will go to pay the secured creditor(s), or it will go to pay unsecured creditors, so they have no net financial loss either way; but if the long shot litigation pays off they can keep their home. This Court emphasizes that this is only one scenario, and this case might be very different. But there is not enough information in the record at present for creditors to be able to make an informed decision whether or not Debtor has financial incentives to act in their best interests.
The tentative ruling is to set a deadline of 4/10/20 for Debtor to file, and serve on all parties in interest including the United States Trustee via
U.S. mail, a notice of the hearing on the employment application, which notice must include a copy of this tentative ruling, and must provide notice of a deadline of 4/21/20 for any response, and 4/28/20 for any reply. In addition, the tentative ruling is that, concurrent with the notice, Debtor must file and serve declaration(s) addressing the foregoing issues.
Debtor's emergency motion for order confirming that stay applies to pre-petition state court litigation (dkt. 30, the "Stay Motion"), application for hearing on shortened time (dkt. 31) and order thereon (dkt. 32)
There is no tentative ruling. The parties should be prepared to address the issues raised in the tentative ruling for the Stay Motion (Calendar no. 1.1, 4/7/20 at 1:00 p.m.).
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Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/5/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
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Docket 30
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling but the parties should be prepared to address the following issues.
Background
Debtor seeks a ruling by this Bankruptcy Court that the automatic stay of 11 U.S.C. 362(a) applies to "all matters" at issue in the State Courts.
Dkt.30, p.8:16. Specifically, three related nonbankruptcy matters appear to be involved:
Jamali et al v. Select Portfolio Servicing, Inc. et al (L.A. Superior Ct. Case No. B290145) (the "First Action")
Jamali v. U.S. Bank et al and Cross-Action of U.S. Bank v. Jamali (L.A. Superior Ct. Case No. BC593550) (the "Second Action")
Espinal v. U.S. Bank – Jamali et al (L.A. Superior Ct. Case No. 19STCV29627) (the "Third Action") [See dkt.30, p.2:8-23 & 5:22-25]
Service of order shortening time ("OST," dkt.32)
The OST (dkt.32, p.2) requires service on all parties in the State Court
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litigation referenced in the motion, as well as in the adversary proceeding in this Court (Jamali v. U.S. Bank [as trustee], Adv. No. 2:20-ap-01068-NB).
Debtor's proof of service ("POS," dkt.34) does not sufficiently prove such service.
The POS shows service on U.S. Bank, but not to the attention of an officer, via certified mail, as required by Rule 7004(b)(3) and (h). The POS shows service on several attorneys, although without identifying whom they represent, and generally an attorney for a party to nonbankruptcy litigation cannot be presumed to be authorized to accept service for the same party in a bankruptcy case (see In re Villar, 317 B.R. 88 (9th Cir. BAP 2004)). In addition, the proof of service is far from clear about whether all parties have been served.
For example, has Debtor served David Duvall as trustee of the Robin Land Trust, or Narges Jamali Mazlaghani (see dkt.35, Ex.2, p.2:8-10)? It appears that bankruptcy counsel might have only just received the cross- complaint that names those parties on 4/4/20 (see dkt.35), so it seems likely they were not served.
The tentative ruling is that, if parties to the State Court litigation were not served, they have been deprived the opportunity to be heard on the motion, and therefore this Court should not decide the merits of the motion. Nevertheless, because it is difficult to know from the present record if service was sufficient, this tentative ruling goes on to address other issues.
Alleged violation of the automatic stay
Debtor alleges that paragraphs (2) through (4) of Section 362(a) apply. See dkt.30, p.7:15-16. For context, this tentative ruling quotes all of Section 362(a):
Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title, or an application filed under section 5(a)(3) of the Securities Investor Protection Act of 1970, operates as a stay, applicable to all entities, of—
the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose
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before the commencement of the case under this title;
the enforcement, against the debtor or against property of the
estate, of a judgment obtained before the commencement of the case under this title;
any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate;
any act to create, perfect, or enforce any lien against property of the estate;
any act to create, perfect, or enforce against property of the debtor any lien to the extent that such lien secures a claim that arose before the commencement of the case under this title;
any act to collect, assess, or recover a claim against the debtor that arose before the commencement of the case under this title;
the setoff of any debt owing to the debtor that arose before the commencement of the case under this title against any claim against the debtor; and
the commencement or continuation of a proceeding before the United States Tax Court concerning a tax liability of a debtor that is a corporation for a taxable period the bankruptcy court may determine or concerning the tax liability of a debtor who is an individual for a taxable period ending before the date of the order for relief under this title. [11 U.S.C. 362(a) (emphasis added)]
Preliminary analysis
Debtor has not alleged any violation of paragraph "(1)" of section 362(a) - actions against Debtor. Presumaby that is because two of the three related actions are by Debtor, and those could be disaggregated from the rest of the litigation and could proceed. See Parker v. Bain, 68 F.3d 1131, 1137 (9th Cir. 1995). Debtor seeks to stay all of the litigation.
Debtor cites Dean v. TransWorld Airlines, Inc., 72 F.3d 754 (9th Cir.
1995). That case also involved paragraph "(1)" of the statute, so arguably it is inapplicable. But Debtor apparently cites Dean for the more general proposition that, if any paragraph of section 362(a) applies to a given claim in the nonbankruptcy litigation, then all matters involving that claim are stayed, even if the stayed proceedings might result in rulings that would neither interfere with Debtor's breathing spell nor alter creditors' positions vis-a-vis
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each other. To that extent the tentative ruling is to agree with Debtor.
But this presumes that one of the paragraphs of section 362(a) applies to each claim in the nonbankruptcy actions. Debtor does not cite any authority that paragraphs "(2)", "(3)", or "(4)" of section 362(a) do apply.
Debtor apparently relies on the "plain meaning" of the statute.
Accordingly, the tentative ruling is to focus on that plain meaning, subject to any authority that may be cited by other parties in interest.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
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Docket 87
Please see the tentative ruling for the status conference (Calendar 3, 4/7/20 at 1:00 p.m.).
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
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Docket 1
Tentative Ruling for 4/7/20:
Continue as set forth below, based on this Court's review of Debtor's status report (dkt. 90). Appearances are not required on 4/7/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Danning Gill Diamond & Kollitz Fee Application (dkt. 87)
Grant the application and approve interim fees of $145,727 and expenses of $2,523.30, for a total award of $148,250.30, and authorize payment of $98,225.30.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 3/6/20 (see dkt. 70 extending deadline from 1/3/20) using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S.
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Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/2/20 at 1:00 p.m. Brief status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m., concurrent with other matters, with a further status conference likely to be scheduled for 6/2/20 at 1:00 p.m., based on this Court's review of Debtor's status report (dkt. 90). Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
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Docket 167
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 1
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
There is no tentative ruling. The parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on:
the UST's MTD and related papers,
Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174),
Debtor's apparent history of mis-starts and poor management of this estate, including a long history of missed projections about how this case would progress, an abandoned attempt to retain a professional to rent out property as an Air-bnb, the belated and unsuccessful attempts to explore a sale or refinancing of the Bel Air property, and transfers of funds without adequate explanation (as referenced in this Court's prior tentative rulings for 10/29/29, 10/15/19, and 9/24/19, reproduced below).
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Inadequate attempts to stop the running of default interest
An additional concern, which may bear on the MTD, is whether Debtor has made adequate attempts to stop the running of postpetition default interest payable to Patch of Land Lending, LLC ("Patch"). The tentative ruling is that she has not.
From the inception of this bankruptcy case this Court has raised concerns that default interest, late fees, and other charges are consuming any equity in the Bel Air property at a rapid rate. On 8/13/19 this Court issued an order conditionally continuing the automatic stay under 11 U.S.C. 362(c)
(3) and setting a deadline of 11/12/19 for Debtor to "file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at stopping the running of postpetition default interest owed to Patch [of Land Lending]." Dkt. 31, Ex.1, p.1, item "(ii)" (emphasis added). Debtor filed a motion challenging the validity of Patch's assertion that it is entitled to default interest and late fees under 11 U.S.C. 506(b) (the "Default Interest Motion," dkt. 123). That is insufficient, for two reasons.
First, it is not enough to file the Default Interest Motion without prosecuting it. The hearing on that motion has been continued several times (dkt. 129, 133, 141) with the current hearing set to be heard 5/5/20 at 1:00
p.m. (dkt. 164).
Second, the Default Interest Motion has the effect of gambling that Debtor will prevail in her attempt to establish that no default interest is owed - an uphill battle that might well fail - rather than stopping the running of whatever interest turns out to be owed. See, e.g., East West Bank v.
Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019) (allowing default interest). This distinction is further explained below.
As a preliminary matter, it is helpful to recognize the different periods in which default interest may accrue:
Three categories of interest exist in bankruptcy cases: (1) interest accrued prior to the filing of the bankruptcy petition (prepetition interest); (2) interest accrued after the filing of a petition but prior to the effective date of a reorganization plan (pendency interest); and (3) interest to accrue under the terms of a reorganization plan (plan interest). ...
Generally, the Code does not provide for pendency interest to
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creditors, because the filing of the petition usually stops interest
from accruing. Section 506(b), however, provides an exception for oversecured creditors:
To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose. [11 U.S.C. 506(b) (emphasis added).]
Thus, an oversecured creditor can recover pendency interest as part of its allowed claim, at least to the extent it is oversecured.
Any accumulated pendency interest determined under § 506(b) is added to the allowed claim of an oversecured creditor and then paid pursuant to the terms of the confirmed plan with plan interest determined under § 1129(b)(2)(A)(i)(II). [In re Beltway One Dev.
Group, LLC, 547 B.R. 819, 826 (9th Cir. BAP 2016) (emphasis added, citations omitted).]
There are only three ways that occur to this Court to stop the running of pendency default interest.
A sale under section 363
Debtor could sell the Bel Air property under 11 U.S.C. 363. That is only a partial remedy because it does not stop the running of pendency default interest before the proceeds are distributed. GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008). But at least from that point forward it would stop the ongoing accrual of pendency default interest.
Unfortunately, a section 363 sale appears to be precluded because Debtor reports that any sale of the Bel Air property would result in capital gains taxes estimated at roughly $1 million. Dkt.159, p.17:1-4. In other words, the cure might be worse than the disease.
Refinancing the debt
Debtor attempted to refinance Patch's debt, but not fully. Patch objected, and this Court denied Debtor's refinancing motion. Debtor has not presented any alternative refinancing proposal. So this alternative appears to be unavailable.
Plan confirmation
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The last way known to this Court to stop the running of pendency
default interest is to confirm a plan that restructures the debt to Patch and reduces the interest rate. As with the other alternatives, this is only a partial remedy because it does not stop the running of pendency interest before the effective date of the plan. But at least it stops the accrual of default interest going forward.
An added benefit of confirming a plan used to be available under some decisions in the Ninth Circuit: retroactively eliminating all pendency default interest. See Beltway One, 547 B.R. 819, 826-28 (discussing In re Entz- White Lumber & Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), and subsequent lower court decisions). But more recent guidance from the Court of Appeals has been interpreted to mean that pendency interest is not eliminated unless the claim is left unimpaired - i.e., unless all defaults in un-matured long-term debt are cured, or matured debt is paid in full on the effective date. See Beltway One, 547 B.R. 819, 826-28 (interpreting Future Media, 547 F.3d
956).
This Court expresses no opinion on these issues except to note that they exist. The point is that, at the very least, it appears that confirmation of a plan would provide a partial remedy because it would stop the ongoing running of pendency default interest, and replace it with plan interest going forward.
Conclusion as to default interest
Why has Debtor not attempted to move forward with a plan of reorganization to address the default interest?
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. Debtor should be prepared to provide this Court with an update on the 4/1/20 AIG inspection (dkt. 192, Bordon decl., para. 7) and AIG's response, if any, to the adjusted insurance claim of
$454,717.11 (id., para.6). Wilmington should be prepared to address under what conditions it would support employment of ClaimsXP (or any other adjuster).
If this Court is persuaded to grant the Application and authorize some form of employment of ClaimsXP retroactively to 1/7/20, employment will be
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subject to Judge Bason's standard employment terms (avaiable at www.cacb.uscourts.gov). Additionally, any employment will be subject to the filing of a satisfactory statement of disinterestedness as required by the posted Procedures of Judge Bason (id.) by 4/10/20.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right to object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Motion to allow Claim 31 filed by Deanna D’Egidio ("Claimant") (dkt. 152), debtor’s motion to extend opposition deadline (dkt. 186) and order thereon (dkt. 189), debtor's opposition (dkt. 187), claimant’s reply (dkt. 193)
The tentative ruling is to grant the motion on the terms set forth in Debtor’s opposition (dkt. 187) and Claimant’s reply (dkt. 193): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of
$44,500.00.
Proposed orders: Movants are directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/5/20 at 1:00 p.m., concurrent with other matters. Brief status report due 4/21/20.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
Continue to the same date and time as the continued status conference (see below), with a deadline of 4/6/20 at noon for Debtor to file amended bankruptcy schedules I & J, including all continuation sheets for line
8.a of schedule I.
At the continued status conference, the parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on the UST's MTD and any argument at the hearing, based on the matters addressed in the MTD and supplement, Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174), Debtor's hiring of a claims adjuster on or about 1/7/20 (dkt.
167, p.3, para. 11) without authorization of this Court, and Debtor's apparent
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arrangement for the claims adjuster to hire counsel to represent the bankruptcy estate without authorization of this Court.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
Continue to the same date and time as the continued status conference (see below). The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right ot object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 1:00 p.m., concurrent with other matters. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
Current issues
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This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's
opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
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Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final
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ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
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Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77, 80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
Termination of prior real estate agent
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Debtor reports (dkt. 69, para.3) that the previously authorized real
estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
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Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent [that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties") that may be part of a real estate transaction for the sale of the Real
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Property [i.e., dual agency? that is prohibited by the posted
Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
What does the quoted text mean? This Court's questions are set forth in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 152
Please see the tentative ruling for the status conference (Calendar no. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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fr. 03/31/20
Docket 150
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 65
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Tentative Ruling for 1/14/20:
Please see the tentative ruling in the status conference (cal. no. 4, 1/14/20 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling in the status conference (cal. no. 19, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/29/19:
Please see the tentative ruling in the status conference (cal. no. 10, 10/29/19 at 1:00 p.m.).
Tentative Ruling for 10/15/19:
Please see the tentative ruling in the status conference (cal. no. 3, 10/15/19 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
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Docket 6
Tentative Ruling for 4/7/20:
Continue as set forth below. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's February MOR (dkt. 46), and has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 5/12/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
Debtor's budget motion (dkt. 34) and supplemental declaration in support (dkt. 38)
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Employment application (dkt.21) and supplemental declarations in support (dkt. 39)
Grant, and approve the employment application on the terms set forth in this Court's revised tentative ruling for 2/18/20, reproduced below, Section (1)(a).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of the tentative rulings for 3/3/20 and 2/28/20, thereby incorporating them as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 4/7/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Employment application (dkt.21)
Debtor has filed Nat. Form B2030 (dkt. 23) and an amended SOFA (dkt. 24) disclosing that a retainer of $10,000 was paid by one James G. Lewis, who is described as one of Debtor's unsecured creditors. The tentative ruling is to set a deadline of 2/25/20 for Debtor and Mr. Lewis each to file and serve on the Office of the United States Trustee their declarations addressing the ethical concerns involved whenever a retainer is paid by a third party. See In re 9469 Beverly Crest, LLC (Case No. 2:19-bk-20000-NB, dkt.44). The tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see below).
As for other issues raised in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to cap costs for photocopying and other expenses per the applicable guidelines (see dkt.21, at PDF p.20), to authorize late payment charges only from when fees and costs are authorized and directed to be paid by this Court (see id., at PDF p.21), and to include the other standard provisions set forth in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Budget motion (as amended, dkt.34): This motion has been self- calendared for 3/3/20 at 1:00 p.m. There is no tentative ruling regarding that motion, but this Court notes (in anticipation of that hearing) that (i) Debtor lists a $750/mo. contribution from his son (dkt.34 at PDF p.9) but there is no contribution declaration on the docket; (ii) Debtor's MOR (dkt.35 at PDF p.7) states that going forward Debtor and his non-debtor wife will pay only their portion of the combined insurance premium for their vehicles and their children's vehicles, and that their children will be responsible for their own car
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loan payments and insurance, but there is no disclosure of how the insurance expense has been allocated; and (iii) Debtor's monthly income projected in the budget motion appears to be substantially lower than in prior years, based on a comparison with Debtor's Statement Of Financial Affairs ("SOFA") (dkt.24, line 4, at p.2), but there is no explanation why. (This Court also notes that the budget no longer includes $500/mo. of "support" payments "to mother-in-law and sister-in-law.")
Substantial equity in properties alleged to have been fraudulently transferred. As directed in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to direct Debtor to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfers of those properties, and direct all parties in interest who appear to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Reijo Kustaa Myllyla Represented By
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Byron Z Moldo
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#7.00 | Cont'd Status Conference re: Chapter 11 Case |
fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, | |
07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15, | |
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16, | |
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18, | |
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18, 9/4/18, | |
10/9/18, 11/6/18, 01/08/19, 3/26/19, 05/21/19, 8/20/19, 11/26/19, | |
12/10/19 |
Docket 9
Tentative Ruling for 4/7/20:
Continue to 8/4/20 at 1:00 p.m., with a brief status report due 7/21/20. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 386, 387, 389, 390) and Status Report (dkt. 391). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Continue to 4/7/20 at 1:00 p.m., with a brief status report due 3/24/19. Appearances are not required on 12/10/19.
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 378, 380, 383) and Status Report (dkt. 385). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Continue to 11/26/19 at 1:00 p.m., with a brief status report due 11/12/19. Appearances are not required on 8/20/19.
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 374, 376) and Status Report (dkt. 377). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
Appearances required.
Sale motion (dkt. 352)
Grant, subject to overbids at the hearing, and also subject to any Court-approved settlement (see dkt. 364) between Debtor and Bayview Loan Servicing, LLC ("Bayview"), for the reasons set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Analysis
Broker's dual representation
Debtor's motion provides that Mr. Renteria represents both the proposed buyer and the seller, the Debtor, in this transaction. Dkt. 352, at PDF p.18:2-5. The tentative ruling is that, although Judge Bason normally disapproves dual agency, that restriction will not apply to the post- confirmation reorganized Debtor.
Sale free and clear Section 363(f) provides that
The trustee may sell property under subsection (b) or (c) of this section free and clear of any interest in such property of an entity other than the estate, only if—
applicable nonbankruptcy law permits sale of such property free and clear of such interest;
such entity consents;
such interest is a lien and the price at which such property is to be sold is greater than the aggregate value of all liens on such property;
such interest is in bona fide dispute; or
such entity could be compelled, in alegal or equitable proceeding, to accept a money satisfaction of such interest.
The tentative ruling is that the property may be sold free and clear of the following interests in the property:
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Allco Enterprises Inc. dba Allco Leasing's lien pursuant to
section 363(f)(4), because its U.C.C.-2 continuation statement statement has expired (dkt. 352, at PDF pp. 21-22).
Bayview Loan Servicing, LLC's lien pursuant to section 363(f)
in view of the parties apparent settlement (dkt. 364). (Unless the settlement falls through, this Court intends to express no view on whether Bayview's interest is in bona fide dispute within the meaning of 11 U.S.C. 363(f)(4) (see dkt. 352, at PDF p.20).
Epps & Coulson, LLC's lien pursuant to section 363(f)(2) because it apparently has consented to the sale (dkt. 352, at PDF p. 20).
All other interests pursuant to section 363(f)(5), and the following analysis from the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov):
§ 363(f): Sales free and clear. Regarding § 363(f)(5), Judge Bason does not follow Clear Channel Outdoor, Inc. v. Knupfer (In re PW, LLC), 391 B.R. 25, 40 (B.A.P. 9th Cir. 2008). He
has ruled that a sale free and clear is permissible under that statute whenever the interest at issue is subject to monetary valuation. See In re Trans World Airlines, Inc., 322 F.3d 283, 290-91 (3d Cir. 2003) ("TWA") (because employees’ claims were "subject to monetary valuation," debtor’s assets could be sold free and clear of successor liability for such claims under
§ 363(f)(5)). Alternatively, Judge Bason has ruled that "cramdown" is among the types of legal or equitable proceeding within the statute, or that Clear Channel is distinguishable in most cases under the rationale of In re Jolan, 403 B.R. 866 (Bankr. W.D. Wash. 2009), because holders of interests can be compelled in numerous other types of legal or equitable proceedings to accept a money satisfaction (which might be $-0- in the case of an interest that is entirely underwater). Those proceedings include a hypothetical foreclosure by one of the lienholders, or a receivership (which could be initiated at the behest of creditors or by the debtor itself). See Cal. Code Civ. Proc. ("CCP") § 564(b)(9) (power to appoint receiver to sell property); CCP
§ 568.5 (receiver empowered to sell property as provided in CCP §§701.510 et seq.); CCP § 701.630 (extinguishment of
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liens); CCP § 701.680 (binding effect of sale). The judge respectfully disagrees with In re Hassen Imports P’ship, 502
B.R. 851, 860 et seq. (C.D. Cal. 2013) (hypothetical foreclosure sale did not qualify under section 363(f)(5)).
(2) Status conference
The tentative ruling is to continue this post-confirmation status conference to 8/20/19 at 1:00 p.m., with no written status report required. This Court anticipates that it will issue a tentative ruling, shortly prior to that time, further continuing the status conference if there is no activity on the docket that appears to warrant a status conference at that time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/19:
Continue to 5/21/19 at 1:00 p.m., with no status report required, in view of the latest status report (dkt. 346) and notice of sale (dkt. 347). Appearances are not required on 3/26/19.
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 343, 345) and Status Report (dkt. 346). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
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MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition (dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on
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Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
The tentative ruling is to overrule Debtor's evidentiary objections (dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
Although valuation is relevant, the tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
Movant asserts that Debtor has shown bad faith, and that this is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a
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motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on 3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what
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appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
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Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
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Docket 49
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Inadequate status report (dkt.169)
Debtor's status report simply repeats what is on the docket. It does not address any of the issues raised at prior status conferences and noted below. The tentative ruling is that no fees should be charged for preparation of the status report.
Partially adequate Disclosures
This Court has reviewed Debtor's supplemental disclosures about her non-debtor husband's finances and related matters (dkt. 145, 146, 147, 148, 158, 159, 167) in response to this Court's order issued on 3/4/20 (dkt. 133). The tentative ruling is that the disclosures are partially adequate.
On the one hand, Debtor has provided a copy of the premarital agreement (dkt.146, Ex.1), which is very important, and has also filed amended bankruptcy schedules I, J and D, as well as a statement of postpetition income and expenses, and Monthly Operating Reports ("MORs"). On the other hand, these disclosures are incomplete, unclear, and internally inconsistent.
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Incompleteness
The incompleteness includes that, as Debtor acknowledges, she has
yet to provide an amended Statement of Financial Affairs ("SOFA") because her family is dealing with the loss of a close family member (dkt.146, p.3, para.7 & 9). It is unclear what else might be missing: creditors and this Court cannot know what they and this Court do not know. The tentative ruling is to set a deadline of 4/21/20 to file the amended SOFA and any other documents that were required under this Court's prior order (dkt. 133).
Lack of clarity The MORs are unclear:
There are two business accounts (-8997 and -9003) but which account relates to which property/business?
Why are there only two business accounts when Debtor apparently shares in the income from the Jefferson Plaza business and has four properties (535 N Fuller, 636 N Laurel, 622 E 35th, and 626 E 35th) at least two of which are rental properties?
Why are there two personal checking accounts
(-9011 and -6492)?
Why is one account overdrawn (account -6492 shows
a balance of -$437, dkt.165, at PDF p.14)?
Debtor's January MOR vaguely lists many entries as "Household." From other information about some of these "Household" expenses, it is not clear that they are appropriate for a debtor in possesion: for example, $350 for "Your Hair By Ellie" on 1/31/20 (dkt.165, p.12, last entry) and $390.92 for "Sephora" on 1/21/20 (dkt.165, p.11, 3d line from bottom). True, Debtor alleges that there is equity in various properties, but that is far from certain and she might well be insolvent. In addition, the MOR lists a lot of restaurant meals (dkt.165, pp.11-12), and again, it is not clear that this is appropriate budgeting for a debtor in possession. The tentative ruling is to set a deadline of 4/21/20 for Debtor to file amended MORs that address these issues.
Debtor's alleged equity in her various properties is also far less clear than it should be. Although that information probably can be pieced together from various other documents, the tentative ruling is to set a deadline of 4/21/20 for Debtor to file a declaration with an attached spreadsheet showing, for each property or business, Debtor's estimate of value, the source of that estimate, the liens against each property (listed by lienholder, in order of
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seniority), the dollar amount of the claim secured by that lien (according to Debtor and, alternatively, according to the holder of the lien), and the sources of those data.
Internal inconsistency
One internal inconsistency is that the latest Bankruptcy Schedules I&J list $16,000 as Debtor's net income from rental properties/businesses (dkt.159, p.2, line 8a) but the attached statements for each property/business list $10,000 of net income (consisting of $10,000 from Jefferson Plaza, LLC,
$0 from 622 E 36th St, and $0 from 626 E. 36th St.). Dkt. 159, pp.5-7. What is the source of the other $6,000?
This Court has considered the possibility that Debtor has mixed up gross and net income. But that does not work either because the gross income is $22,700 ($16,700 + $3,000 + $3,000 = $22,700). Dkt. 159, pp.5-7.
The latest declaration of postpetition income and expenses (dkt.158) has yet more numbers that are different, but no explanation and no attached disclosures of gross income, expenses, and calculation of net income.
The tentative ruling is to set a deadline of 4/21/20 for Debtor to file (A) further amended Bankruptcy Schedules I and J and (B) a further amended statement of postpetition income and expenses, with a complete explanation of any differences between the former and the latter.
Conclusion as to Debtor's financial disclosure
How can creditors and this Court rely on Debtor to make accurate financial reporting of anything in this case if even basic information is missing, unclear, or incorrect? The tentative ruling is to give Debtor one more opportunity for complete, candid, and clear financial disclosures.
No discernable progress since last hearing
At a hearing on 3/10/20, this Court noted that the docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case, but took no action other than to caution Debtor to be cognizant of the warnings that this Court set forth on the record at the hearing on 3/3/10. The docket still does not reflect any activity. Why not?
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
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The parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Debtor's motion for order declaring judgment liens void as violations of the automatic stay and for compensatory sanctions (dkt. 122, the "Sanctions Motion"); National Commercial Recovery, Inc.'s ("NCR") opposition (dkt. 142), debtor's reply (dkt. 157)
Deny.
The tentative ruling is that Debtor is correct that the automatic stay in her prior bankruptcy case applied when the abstracts were recorded, so the recording was void. But NCR is also correct:
that there is no evidence Debtor gave it notice of her bankruptcy filing, which would entitle it to seek to retroactively annul the stay (see In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir. 2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay)), and
that, although the better course may have been for NCR to file a motion seeking retroactive annulment, NCR was not taking any affirmative steps (it was not doing things held to violate the automatic stay, like terminating an executory contract - it was doing nothing, which preserved the status quo). That is less than what has been held, in an analogous situation involving preservation of the status quo, not to violate the automatic stay. See Citizens Bank of MD v. Stumpf, 116 S.Ct. 286 (1995). Therefore, the tentative ruling is that as a legal matter, NCR did not have any duty to record releases of its liens, and did not violate the automatic stay by declining to do so.
On the equities, to the extent equitable considerations are relevant, why should NCR have to pay to litigate these issues, instead of Debtor? If the lien were truly shown to be an obstacle to anything Debtor needs to accomplish, it is more equitable to place the burden on Debtor to seek affirmative relief than it would be to place the burden on NCR to seek confirmation from this Court that it has no duty to release its liens.
Moreover, the tentative ruling is that Debtor's premise is flawed.
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Debtor asserts that "if NCR's lien were allowed to remain" that "would prevent refinancing" and "crater the case ...." (dkt. 157, p.2:25-26). How so?
Debtor has not established why she could not obtain financing that primes NCR's junior lien (if that lien is adequately protected) under 11 U.S.C.
364. Alternatively, Debtor has not explained why a chapter 11 plan could not leave NCR's lien in place and pay it over time. In fact, Debtor allegedly intends to pay all creditors (not just NCR) 100% of their claims over time, so it is not clear that Debtor has to do anything regarding NCR's lien at this point. Is this litigation a good use of the bankruptcy estate's assets?
Proposed orders: If appropriate, the prevailing party is directed to lodge a proposed order on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: 4/15/20 (per dkt. 171, 172)
Continued status conference: 5/12/20 at 1:00 p.m.. Brief written status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
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Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/10/20:
Appearances required.
Current issues
Debtor's amendment of bankruptcy petition to elect Subchapter V (dkt. 128)
On 3/2/20, Debtor amended her petition to elect Subchapter V. The parties should be prepared to discuss the effect of that amendment, including any appropriate dates and deadlines for such matters as the appointment of a Subchapter V trustee, the filing of an amended plan, and any other applicable procedures that this Court may need to set at this time.
No discernable progress since last hearing
The docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case. Given the short time since the last hearing, the tentative ruling is that this Court will not take any
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action based on that lack of discernable progress, but to remind Debtor to be cognizant of the warnings that this Court set forth on the record at the last hearing.
No corrected MOR
Debtor has not corrected the monthly operating report, which was not filed on the required form. See tentative ruling for 3/3/20 (reproduced below), item "(1)" "(b)". Why not?
No statement reflecting apparent increase in income?
Despite two reminders, Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Rulings for 3/10/20 and 2/18/20 (reproduced below). Why not?
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94), Debtor's reply (dkt. 134), interim order (dkt.113)
Although this Court has concerns about whether Debtor's financial disclosures are accurate and complete (as set forth in various portions of this tentative ruling and prior tentative rulings), the proposed use of funds in the budget motion appears to be appopriate. Accordingly, the tentative ruling is to grant the motion on a final basis, subject to the following.
First, any approval is subject possible reconsideration once Debtor finally files her statement of postpetition income and expenses, and files the other documents directed by this Court (see dkt.133), or as other facts may come to light. Second, the budget must be adjusted to accommodate the request of East West Bank for Debtor to increase her proposed monthly mortgage payment to $5,643.86, which Debtor has agreed to do (dkt. 134). Third, any approval is subject to the parties' rights to seek further relief, including approval of any stipulation for adequate protection.
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on a final basis, on the same terms as stated in the order (dkt.114) granting the motion on an interim basis, and subject to the same caveats and conditions as set forth above regarding the budget motion.
Application to employ The Orantes Law Firm (the "Firm") (dkt. 72); statement of disinterestedness (dkt. 73); amended statement of
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disinterestedness (dkt. 82); Dec re non-opp (dkt. 98); order setting matter for hearing (dkt. 101)
The tentative ruling is to grant the application in part and deny it in part as follows.
Debtor seeks to employ the Firm pursuant to 11 U.S.C. 327, with compensation pursuant to 11 U.S.C. 330 at the following hourly rates for the Firm's attorneys: Giovanni Orantes: $695 and Luis A. Solorzano: $350 (dkt. 72, p.16). In determining the reasonableness of the proposed billing rates, 11 USC 330(a)(3)(B), (E) and (F) require this Court to consider, among other things, proposed counsel's hourly rates, any board certification or other demonstrated skill and experience in the bankruptcy field, and "the customary compensation charged by comparably skilled practitioners "
Based on a review of rates charged by other bankruptcy professionals practicing before this Court as well as this Court's familiarity with proposed counsel's skills and performance in pending and past cases before it, the tentative ruling is to approve the Firm's employment, subject to Judge Bason's standard employment terms (available at www.cacb.uscourts.gov), but reduce the hourly rates that the Firm may charge to the following maximum dollar amounts, without in any way limiting the requirement that any rates charged and time spent still must be fully justified: Giovanni Orantes:
$475/hour and Luis A. Solorzano: $250/hour.
In addition, the tentative ruling is that any waiver of conflicts of interest is ineffective as against the bankruptcy estate. (A "debtor in possession," acting as a trustee for the benefit of creditors, cannot waive conflicts on behalf of those creditors.)
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The tentative ruling is to continue this matter again, to be concurrent with the continued status conference (see below), so as to be able to assess
whether Debtor has adequately prosecuted this case, including selling or refinancing one or more properties (if that is realistic) or otherwise demonstrating progress that has been sorely lacking to date, and (ii) Debtor's papers regarding her non-debtor husband's finances, which are due 3/18/20. See Order (dkt.133).
Meanwhile, the parties should be prepared to address whether they
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have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
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Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
Debtor's Bankruptcy Schedules I and J provide very little information about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
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Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
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Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 122
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 1
Tentative Ruling for 4/7/20:
The tentative ruling is to take this status conference off calendar based on Debtor's status report (dkt.194) and because on 3/12/20 the United States District Court issued its order dismissing the appeal of this Bankruptcy Court's Order Granting Defendant's Motion To Dismiss Without leave To Amend (the "MTD Order," 2:18-ap-01057-NB, adv. dkt. 52) for lack of prosecution (see adv. dkt. 58), and because there are no other matters that appear to warrant a status conference. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Riverwood Gas and Oil LLC Represented By Giovanni Orantes Mike Montes Luis A Solorzano
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Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19, 1/14/20, 02/18/20
Docket 1
Tentative Ruling for 4/7/20:
Continue to 6/30/20 based on Plaintiff's unilateral status report (adv.dkt.35). Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Continue this status conference as set forth below. This Court has reviewed the Plaintiff's status report (adv. dkt. 33), and has no issues that would require
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a status conference at this time. Appearances are not required on 2/18/20.
Current issues N/A
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/31/20 Continued status conference: 4/7/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue this status conference as set forth below. This Court has reviewed the Plaintiff's status report (adv. dkt. 28), and has no issues that would require
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a status conference at this time. Appearances are not required on 1/14/20.
Current issues
Order on Debtor/Defendant's Motion To Set Asie Entry Of Default (adv. dkt. 19)
At the 12/17/19 hearing, this Court denied Debtor's motion. While the docket reflects a notice of lodgement related to the motion (adv. dkt. 27), no order has actually been lodged.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after this hearing date, and attach a copy of this Court's 12/17/19 tentative ruling, thereby incorporating it as this Court's final ruling, for the reasons stated therein and at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 2/11/20 Continued status conference: 2/18/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Debtor/Defendant's motion to set aside entry of default (adv. dkt. 19), Plaintiff's opposition (adv. dkt. 25), and Debtor/Defendant's reply (adv. dkt. 26)
Deny without prejudice for the reasons set forth below.
The 9th Circuit employs a three-part test to determine whether or not "good cause" exists to set aside entry of default under Rule 55(c) (Fed. R. Civ. P.), made applicable in adversary proceedings by Rule 7055 (Fed. R. Bankr. P.). The three factors are:
whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice the other party. [United States v. Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1091 (9th Cir. 2010) (internal quotation and citation omitted).]
This standard is disjunctive, such that a finding that any one of the above factors is true is sufficient reason to refuse to set aside the default. Id.
Whether Debtor engaged in culpable conduct that led to the
default
Debtor provides three explanations for why she was not culpable - (1) her prior counsel withdrew on 8/6/19, shortly before her answer was due (on 8/14/19), and prior counsel never filed an answer, (2) a series of exigent personal matters, and (3) that she is not an attorney and is unfamiliar with the details and formalities of litigation deadlines. Adv. dkt. 19, p.4:11-14 and p.4:21-27.
Debtor did not file the instant motion (11/17/19) until almost three months after default was entered against her (8/20/19, adv. dkt. 9). See adv.
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dkt. 25, p.5:13-16. Debtor has not explained why the above three explanations excuse a three month delay in filing the motion. Was Debtor interviewing lawyers during that time? Debtor also does not provide any specific dates of her exigent personal matters that demonstrate there was a direct relationship between those events and Debtor's mental state at the time the answer was due. See adv. dkt. 25, p.6:10-12. For example, did Debtor visit a doctor or other professionals to address those exigent personal circumstances? While Debtor might not be an attorney familiar with litigation deadlines, immediately after default was entered she enlisted her state court attorney to assist in having the default set aside. Adv. dkt. 19, p.3:25-p.4:1.
Was Debtor similarly aware of the answer deadline?
The tentative ruling is that Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, which is sufficient grounds for denying her motion.
Whether Debtor has meritorious defenses to the causes of action in the adversary proceeding
Debtor's motion explains that Debtor has meritorious defenses to the causes of action in the underlying state court action. Adv. dkt. 19, p.6:13-7:8. Plaintiff's opposition explains that Debtor's motion does not address defenses to Plaintiff's objections to dischargeability, which are the matters at issue in this adversary proceeding. Adv. dkt. 25, p.6:23-25. Debtor's reply states that because the state court actions have not been finally adjudicated, there is no debt owed to Plaintiff by Debtor that the court can make a determination on regarding dischargeability. Adv. dkt. 26, p.4:7-10.
Debtor is incorrect as to Debtor not owing Plaintiff a debt. Plaintiff's complaint explains that Plaintiff's fees and costs award was affirmed on appeal and the abstract of judgment was recorded on 7/19/18. Adv. dkt. 1, p.11, paras. 33-34. Plaintiff's complaint further alleges that Debtor's action to allegedly prevent collection of the judgment is grounds for denying Debtor her discharge under 11 U.S.C. 727. Id. at p.12, para. 44. Debtor's motion does not provide any meritorious defenses to this cause of action. Moreover, in order to defeat Plaintiff's cause of action on this issue, Debtor would need to meet the burden of proof for a motion for reconsideration. It appears Debtor would have a very difficult time meeting this standard, especially in light of Debtor's admission that the lien which eats up all the equity in Debtor's property that might otherwise be used to pay the judgment is a sham. See dkt. 142, p.3:1-3; adv. dkt. 25, p.7:26-p.8:1.
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The tentative ruling is that Debtor has not provided any meritorious
defenses to that portion of the adversary proceeding, which is a sufficient ground to deny her motion as currently presented. The tentative ruling is that it is premature to address whether Debtor has meritorious defenses with respect to the remainder of the adversary proceeding, because that may be mooted by the issue- or claim-preclusive effect of the actions that are proceeding in nonbankruptcy court.
Whether reopening the default judgment will prejudice
Plaintiff
Debtor aruges that Plaintiff will not be prejudiced is this Court grants her requested relief because moving forward on the merits after "only a short delay" should not prejudice Plaintiff's ability to litigate her case. Adv. dkt. 19, p.7:10-22. Plaintiff says that she will be prejudiced because the history of Debtor's bankruptcy case evidences a patter of fraudulent actions by Debtor to hinder Plaintiff's prosecution of the state court cases. Adv. dkt. 25,
p.7:25-26.
While this Court agrees with Plaintiff that there appears to have been fraud re the $5 million recorded lien on Debtor's property, Plaintiff has not explained the basis for her assertion that now that Debtor is in bankruptcy the same sort of fraudulent behavior is likely to occur.
The tentative ruling is that granting Debtor's motion will not prejudice Plaintiff.
Conclusion
The tentative ruling is that while granting Debtor's motion may not prejudice Plaintiff, Debtor has not provided sufficient support for her explanations of how she did not engage in culpable conduct, and she has not explained what her meritorious defenses to the causes of action in this adversary proceeding are, so this Court is denying Debtor's motion without prejudice.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined
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and/or waived or forfeited (adv. dkt. 11).
Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/31/19 Continued status conference: 1/14/20
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Continue this status conference as set forth below. This Court has reviewed Plaintiff's latest status report (adv. dkt. 15) and is not aware of any issues that warrant a status conference at this time. Appearances are not required on 11/12/19.
Venue/jurisdiction/authority.
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
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Mediation. [intentionally omitted]
Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 12/17/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). This Court has reviewed Plaintiff's unilateral status report (adv. dkt. 11) and the other filed documents and records in this adversary proceeding.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order entitled "Order On Initial Status Conference" via LOU within 7 days after the status conference, attaching a copy of this tentative ruling.
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Preliminary matters: continuance
Plaintiff's Status Report notes (a) that a Clerk's Default was entered in this case on 8/20/19 (adv. dkt. 9) and (b) that she will either seek relief from the automatic stay to proceed with defamation actions in nonbankruptcy court and/or seek a default judgment in this adversary proceeding. The tentative ruling is to continue this Status Conference as set forth below, at which time this Court can assess what progress has been made on those issues. Note: In addition, this Court will hold a Status Conference concurrent with any other hearing in this adversary proceeding (including any self-calendared hearings).
Standard matters
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
Plaintiff is directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
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Deadlines: This adversary proceeding has been pending since 7/12/19. Discovery cutoff (for completion of discovery): N/A
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 10/30/19.
Continued status conference: 11/12/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
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Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
2:00 PM
Docket 141
Continue to 5/5/20 at 11:00 a.m. to address the following issues.
Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Service
Although this Court has discretion regarding who must be served with motions to approve proposed settlement (per Rule 2002(a)(3), Fed. R. Bankr. P.), the tentative ruling is that Debtor must be served, and this means serving both Debtor individually and Debtor's attorney ("double service"). See Rules 7004(b)(9)&(g) and 9014(a) (Fed. R. Bankr. P.). The proofs of service (dkt.
142, 143) do not reflect such double service.
The tentative ruling is that this Court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non-bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in
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bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sharyl Gwen Bloom Represented By Alan D Irwin
Trustee(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
2:00 PM
fr. 11/5/19, 11/21/19, 12/17/19
Docket 127
Debtor(s):
Zeta Graff Pro Se
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
2:00 PM
fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20
Docket 19
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions
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set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain
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current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that
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the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
Eric Bensamochan
2:00 PM
fr. 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20
BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Revised Tentative Ruling for 2/18/20:
Grant in part the motion of Beverly Partners, LLC ("Beverly") for relief from automatic stay (dkt. 47). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Based on the motion papers, Debtor's opposition papers (dkt. 50), and Beverly's reply (dkt. 53), the tentative ruling is to modify the automatic stay to set deadlines - further described below - for Debtor to take steps to market and sell the property at 10838-10842 Beverly Blvd., Whittier, CA 90601 (the
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"Property"). This Court recognizes that Debtor has characterized the Property as his retirement security, but the tentative ruling is that there is no other way to provide adequate protection of Beverly's interest in the Property.
(1) Valuation
The tentative ruling is that Beverly's evidence is persuasive as to including a higher property tax assessment for valuation purposes (see Eggleston Reply
Decl., dkt.53, p.3:1-13) and that, with this adjustment, Debtor's approach to valuation would yield a value of $850,000 (id., p.3:14-17). Beverly's appraisal, in contrast, asserts a value of $795,000. See dkt.47, at PDF pp.77-end, and dkt. 53, p.3:18-21.
The tentative ruling is that the other evidence provided by Debtor and Beverly (e.g., as to appropriate discount rates, and the use of allegedly comparable properties) does not weigh in one direction or the other clearly enough for this Court to decide between the two valuations without an evidentiary hearing (or, perhaps, further declarations). Compare Eggleston Decl. (dkt.79, pp.79 et seq.) and Eggleston Reply Decl. (dkt.53) with Collins Appraisal (dkt.50, Ex.A) and Collins Decl. (dkt.50, pp.13 et seq.). Therefore, the remainder of this tentative ruling considers both valuations.
(2) 11 U.S.C. 362(d)(1)
Under section 362(d)(1) this Court must consider any lack of adequate protection (or other "cause" for relief). One form of adequate protection is a sufficient equity cushion.
The tentative ruling is that, unless an equity cushion is very large, an eroding equity cushion may place Bevery's interest in the Property at greater risk. Therefore, this Court must consider Beverly's equity cushion (if any), both as of the petition date (8/30/19) and currently.
In calculating that equity cushion the tentative ruling is that this Court must consider (i) the senior real estate tax lien (Claim No.2-3) of $22,417.08 as of the petition date, plus postpetition interest at 18% for the current calculation (id., p.2, line 9), plus (ii) Beverly's lien of approximately
$721,702.10 as of the petition date, or approximately $741,879.34 as of 11/7/19 (dkt.47, pp.7 & 11), plus postpetition interest at 17% for the current calculation (id., Ex.H, at PDF p.141) (POC 5-1, line 9), plus (iii) any other charges that are allowable under 11 U.S.C. 506(b) (e.g., ongoing attorney
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fees), minus (iv) adequate protection payments (3 x $3,313.63 through Beverly's 12/3/19 Reply, dkt.dkt.53, p.2:15, plus two more payments for January and February, for a total of 5x$3,313.63 = $16,586.15).
Based on these numbers, the tentative ruling is that, even using Debtor's valuation method (adjusted as set forth above), the combination of a modest equity cushion (substantially below 20%) and the current (low) adequate protection payments (very substantially below the contractual default or non-default interest rates) are insufficient. They do not provide Beverly with protection of its interest that is truly "adequate" as required by section 362(d)(1).
Therefore this Court "shall" grant some form of relief from the automatic stay. 11 U.S.C. 362(d). That relief need not necessarily be termination of the automatic stay: it can take the form of modifying or conditioning the automatic stay. Id. The tentative ruling is that, because Beverly itself would have to take time to market and sell the Property (if it were to attempt to maximize value and not risk its own recovery), Beverly will be adequately protected by providing Debtor with time in which to do the same.
(3) Amount of time to market and sell the property
The tentative ruling is to set deadlines of (a) 2/28/20 for Debtor to file and serve an application to employ a real estate agent for the Property, (b) 4/24/20 for Debtor to file and serve a motion under 11 U.S.C. 363(b) and (f) to sell the Property, subject to overbids, (c) 5/19/20 for a hearing (and auction, if there are any overbidders), and (d) 6/23/20 to close the sale (either to the winning bidder or a backup bidder) and pay Beverly out of escrow. If Debtor fails to meet those deadlines, the tentative ruling is that Beverly would be authorized to file and serve a declaration of default and lodge a proposed order terminating the automatic stay.
Meanwhile, the tentative ruling is to monitor Debtor's progress by setting a continued hearing on this motion to the same time as the continued status conference (see calendar no. 23, 2/18/20 at 1:00 p.m.).
(4) 11 U.S.C. 362(d)(2)
The tentative ruling is that for purposes of section 362(d)(2)(A) (whether Debtor has any equity in the Property) this Court must take into account the IRS lien (Claim No.7-1) of $64,423.96 as of the petition date (id.
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at PDF pp.2&4-10), plus postpetition interest of 5% for the current calculation. This Court notes that the IRS claim is secured by any property owned by Debtor, but there is no evidence that equity in any other property will decrease the amount of this claim.
The result would be that under Beverly's valuation Debtor would have no equity in the property, but under Debtor's valuation he would have some equity. Because the burden of proof is on Beverly on this issue (11 U.S.C. 362(g)(1)), the tentative ruling is that on the present record Beverly has not established an entitlement to relief under section 362(d)(2). All rights are reserved for Beverly to continue seeking to establish that element with additional evidence, and for Debtor to oppose any such evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
2:00 PM
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By Simon Aron
2:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20
Docket 1
Tentative Ruling for 4/7/20:
Continue as set forth below. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt.94, 105)
Continue to the same date and time as the continued status conference, to see if Debtor timely files and serves a timely 11 U.S.C. Section 363(b) motion, as required by this Court's adopted tentative ruling from the 2/18/20 hearing. See dkt. 94, PDF p.7.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 101), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU
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within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/5/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference, because Debtor has timely filed a motion to employ a real estate broker (see dkt. 97, 98).
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU
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within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/7/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Order To Show Cause Re Service Of Bar Date Order (the "OSC," dkt. 63)
Discharge the OSC based on Debtor's fourth amended proof of service (dkt.89) and supporting declaration (dkt.90).
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Grant in part, as set forth in the tentative ruling for calendar no. 20 (2/18/20 at 1:00 p.m.), with a continued hearing contemporaneous with the continued status conference (see below).
(c) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
Grant on a further interim basis, on the same terms as this Court's
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prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
2:00 PM
Continue to the same date and time as the continued status
conference. Reasons: This Court's posted tentative ruling prior to the hearing scheduled for 12/10/19 (reproduced below) was not contested, and therefore it was adopted as this Court's ruling. The ruling was: "to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to [i] serve all required persons with notice of the continued hearing, and [ii] file a proof of service." (Emphasis added.) Beverly has done the latter (dkt.54) but not the former.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61) Grant on a final basis.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required. on 12/10/19, but Debtor and Beverly Partners, LLC ("Beverly") are directed, well ahead of the continued hearing date set forth below, to take whatever steps are necessary or appropriate to address the issues set forth below (e.g., correcting service and/or proofs of service, lodging proposed order(s), filing corrected MORs, etc.).
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Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Beverly's proof of service does not show service on the list of creditors included in Debtor's "list filed under Rule 1007(d)" (as required by Rule 4001(a)(1), Fed. R. Bankr. P.). See dkt. 1. The tentative ruling is to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to serve all required persons with notice of the continued hearing, and file a proof of service.
Cash collateral motion (dkt.19)
No proposed order has been lodged - at the hearing on 10/1/19 this Court directed counsel to lodge a proposed order granting the motion on an interim basis and attaching (and adopting) a copy of this Court's tentative ruling for that date (available at www.cacb.uscourts.gov). In addition, Debtor did not file and serve a notice of the final hearing by 10/3/19. In addition, any such service would have to be in compliance with the applicable rules for service, as stated in that adopted tentative ruling.
The current tentative ruling is (i) to direct counsel, again, to lodge a proposed order granting the motion on an interim basis through the conclusion of the final hearing, (ii) to set a final hearing for the same date and time as the continued status conference (see below), and (iii) to set a deadline of 12/11/19 for Debtor to file and serve notice of the final hearing in compliance with the applicable rules for service.
Proof of service of bar date order (dkt.28)
Debtor's counsel has had trouble with service of this order and/or proving that it was served as required. See dkt. 35,36,37. Even the latest, second amended proof of service (dkt.37) is inadequate in that it fails to state who actually served the order and when they did so. Implicitly, the person who signed the proof of service, Paulina Buitron, is the person who actually deposited the envelopes in the U.S. mail, and that was done sometime between 9/30/19, when the order was supposed to have been served, and 10/3/19, when the proof of service was filed, but the declaration does not actually say so. In addition, at the hearing on 10/1/19 this Court directed Debtor's counsel to double-check that all creditors had in fact been served and, if not, to apply for an order setting a supplemental bar date as to any creditors who have not been served.
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The tentative ruling is to excuse what appears to be untimely service of the bar date order by a few days, and set a deadline of 12/11/19 (i) for Debtor's counsel to file a third amended proof of service of the bar date order, using the local form (mandatory for all motions) (see Local Form
F9013-3.1.PROOF.SERVICE), (ii) to lodge a proposed order excusing the untimely service of the bar date order, with a copy of this tentative ruling attached, and (iii) if necessary, apply for a supplemental bar date for any creditors who were not served with the bar date order, and lodge a proposed supplemental bar date order.
Debtor's Monthly Operating Reports ("MORs")
Debtor appears to be having trouble complying with his obligations as a debtor in possession, including not paying prepetition debts. In addition, the October MOR (dkt.49) appears to show lossess from most of Debtor's various businesses, and perilously low bank balances, even with the reduced dollar amount of the adequate protection payments to Beverly (less than the ongoing interest obligation). In addition, there is an internal inconsistency about postpetition adequate protection and/or lease payments: the October MOR (dkt.49, at PDF p.57 of 61) lists "0" postpetition payments not made (i.e., Debtor allegedly is postpetition current), but then the same table lists "Total Due" postpetition amounts of many thousands of dollars - which is it? Is Debtor postpetition current in payments to secured creditors and/or lessors, or not?
The tentative ruling is to direct Debtor (i) to confer with the Office of the United States Trustee and file whatever corrected MORs are necessary or appropriate, and (ii) to be prepared to address the foregoing issues at the continued status conference.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28; see above)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/17/19 at 1:00 p.m. (short continuance because Beverly's motion for relief from the automatic stay should be addressed soon). No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
[N/A: continued to 12/10/19 (dkt.43)]
Tentative Ruling for 10/1/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Cash collateral motion
Grant (subject to this Court's standard conditions, see calendar no.1, 10/1/19 at 1:00 p.m.), provided that Debtor must address why this motion was not self-calendared for hearing until over a month after the petition date, and whether, meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a
2:00 PM
later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Budget Motion
Debtor's status report incorrectly states that a budget motion is not required by the presiding judge's procedures. Dkt. 20, p.3. See posted Procedures of Judge Bason (available at cacb.uscourts.gov) (the "Bason Procedures") Section VII.G. In addition, a budget motion appears to be particularly important in this case because most of Debtor's income and expenses are effectively hidden and/or mis-reported.
Debtor's Bankruptcy Schedule I reports that he is an interior designer/hair stylist (dkt.22, at PDF p.27), his Statement Of Financial Affairs ("SOFA") lists various "dba" enterprises that might or might not reflect other business ventures, and Debtor apparently rents out some of his properties using Airbnb, but there is no breakdown of any of this. Contrary to the instructions on line 8a of Schedule I, debtor lists only a total net dollar amount for all businesses/properties combined - $22,598.00 per month - and fails to attach a statement for each business/property showing gross receipts, ordinary and necessary business expenses, and the calculation of net income. Also, in apparent contradiction of this alleged monthly net income, the SOFA (dkt. 22 at PDF p.31) lists gross income of $20,000 for the year to date (9 months), $7,875 for 2018, and $28,223 for 2017. (Perhaps Debtor
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listed monthly net income instead of yearly gross income - if so he must file a corrected SOFA.)
The tentative ruling is to direct Debtor to file an amended Schedule I and an amended SOFA, and to file and serve a budget motion and any other documents that are necessary or appropriate to correct the foregoing deficiencies, no later than 9/27/19.
Bankruptcy Schedule G
Debtor lists no executory contracts or unexpired leases (dkt.22, at PDF p.24). What about Airbnb and/or other short-term or long-term rental arrangements? The tentative ruling is to direct Debtor to file an amended Schedule G no later than 9/27/19.
Cash collateral
Even though this case was filed on 8/30/19, Debtor did not self- calendar his cash collateral motion for hearing until over a month later, on 10/1/19 at 1:00 p.m. Meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Employment Application
The tentative ruling is to set a deadline of 9/27/19 for Debtor to file and serve local form F 2014-1.STMT.DISINTERESTED.PROF in support of Debtor's application to employ Eric Bensamochan as his bankruptcy counsel (dkt. 18). See Bason Procedures Section VII.D.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/1/19 at 1:00 p.m. No written
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status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
fr. 3/10/20
Docket 37
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 8, 4/7/20 at 2:00 p.m.)
Revised Tentative Ruling for 3/10/20:
Appearances required. Debtor should be prepared to addressed the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 43). In addition, Debtor is directed to explain the budgets attached to the motion as Exhibits "1", "2", and "3." This Court does not understand those budgets.
Subject to resolution of the above referenced issues, and any opposition at the hearing, and further subject to Debtor's stipulation with the United States on behalf of the IRS (dkt.62), the tentative ruling is to grant the motion (docket no. 37) on an interim basis, subject to the conditions set forth below, with a final hearing on 4/7/20 at 2:00 p.m., and a deadline of 3/13/20 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
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Timing. Lodge the proposed order within 7 days after the
hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
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Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their
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disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Revised Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
fr. 3/10/20
Docket 38
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 8, 4/7/20 at 2:00 p.m.)
Revised Tentative Ruling for 3/10/20:
Appearances required. Debtor should be prepared to addressed the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 44). In addition, Debtor is directed to explain the budgets attached to the motion as Exhibits "1" and "2." This Court does not understand those budgets.
Subject to resolution of the above referenced issues, and any opposition at the hearing, and further subject to Debtor's stipulation with the United States on behalf of the IRS (dkt.62), the tentative ruling is to grant the motion (docket no. 38) on an interim basis, subject to the conditions set forth below, with a final hearing on 4/7/20 at 2:00 p.m., and a deadline of 3/13/20 for the movant to file and serve a notice of the final hearing.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
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Timing. Lodge the proposed order within 7 days after the
hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
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Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their
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disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
Docket 1
Tentative Ruling for 4/7/20:
Appearances required. Pursuant to Judge Bason's COVID19 Procedures,
ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Notice of continued hearings
At the 3/10/20 hearing, Debtor was directed to give notice of the continued hearings on the cash collateral motions and status conference no later than 3/13/20. Debtor's proof of service reflects that notice was not given until 3/20/20. See dkt. 70.
In addition, Debtor was directed to give notice to the co-obligor on certain loans, Debtor's mother, who reportedly is a debtor in her own chapter 13 case. Debtor was also directed to give notice to Debtor's mother's bankruptcy attorney and Chapter 13 Trustee. See Amended Bankr. Sch. D (dkt.27) (listing Debtor's mother as co-obligor). Debtor's proof of service does not appear to reflect any such service.
Debtor is directed to address at the hearing whether notice is sufficient.
See Rule 4001(b)(1)(C) and (d)(1)(C)&(4) (Fed. R. Bankr. P.). If notice is sufficient, the tentative rulings on the merits are as set forth below. If not, the following tentative rulings will be for interim approval, with a continued hearing concurrent with the continued status conference (see below), and the Debtor
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to serve notice of the continued hearing no later than 4/8/20, any response due 4/15/20, and any reply orally at the hearing.
Modifications of monthly adequate protection payments
The tentative ruling is to approve the proposed monthly adequate protection payments subject to modification by agreement between Debtor and the party asserting an interest in cash collateral. The tentative ruling is that such flexibility is warranted due to the COVID-19 situation, and the fact that it may be in all parties' interests to establish some flexibility regarding the monthly payments given the general economic uncertainty.
Stipulation with IRS
All of the following tentative rulings are subject to the stipulation between Debtor and the United States of America, on behalf of its agency the Internal Revenue Service ("IRS"). Dkt.62. That includes adequate protection payments of $4,500.00/mo., subject to any modification by Debtor and the IRS. Id., p.3:7-17.
Standard conditions
First, Judge Bason's policy is to incorporate his standard conditions into any order approving the use of cash collateral (see, e.g., dkt.80, at PDF pp.3-5). Such conditions must be incorporated by reference (rather than re- typed, so that parties in interest and this Court do not have to proofread any re-typed text).
Second, Judge Bason's policy is that any concessions by Debtor as to the validity, priority, or amount of any claim (e.g., dkt.81, p.4:3-20, p.5:12-17) shall be binding solely as against Debtor for a period of 90 days after notice of entry of the order approving Debtor's concessions (and other terms), and only thereafter will those concessions be binding on the bankruptcy estate, provided that if any party in interest files and serves an objection to the subject claim prior to that 90-day deadline then such objections shall be preserved.
The tentative ruling is to direct Debtor to serve notice of entry of the
orders referenced below within 7 days after entry thereof.
Debtor's first motion to use cash collateral (dkt. 37)
Brynhurst property
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Grant on a final basis, on the same terms previously ordered (dkt. 80).
1929 Rochester property
Debtor's reply to the objection of U.S. Bank Trust National Association ("US Bank") offers some additional information regarding the "other" category for expenses listed in Debtor's proposed budget (dkt. 37, p.5, dkt.85, Ex.2).
The parties are directed to address whether that is sufficient. See US Bank Obj. (dkt. 78), p.2:23-27. Subject to resolution of that issue, the tentative ruling is to authorize the use of US Bank's cash collateral from this property on a final basis, on the same terms previously ordered (dkt. 75), except that
(x) the final order should correct the property address that is listed in the interim order (the 1929 Rochester not Brynhurst property), and (y) US Bank's adequate protection payments shall be $2,373.89/mo., subject to any modification by Debtor and US Bank. See Reply (dkt.85), p.1:26.
(iii) 1932 Rochester property (aka 1932 W. 37th Pl.)
Grant on a final basis, on the same terms previously ordered, as modified by the proposed stipulation between Debtor and HSBC Bank USA National Association (dkt. 76) including adequate protection payments of
$6,567.14/mo., subject to any modification by Debtor and HSBC. Id., Ex.1, p.4:1-6.
Debtor's second motion to use cash collateral (dkt. 38)
Cimarron property
Grant on a final basis, on the same terms previously ordered, except as modified by the proposed stipulation between Debtor and The Bank Of New York Mellon ("BONY") (the "BONY Stipulation," dkt. 71), with the following limitations. This Court notes that the BONY Stipulation does not attach any evidence establishing that BONY has a security interest in Debtor's property. Judge Bason's policy is not to approve stipulations as to the validity, priority, or amount of a secured claim, even as against a debtor, without some evidence of due diligence being conducted (e.g., copies of recorded documents establishing BONY's security interest). The tentative ruling is that, before lodging any order granting the motion as to this property, Debtor must file a declaration authenticating such evidence. Subject to the foregoing, the tentative ruling is to approve the use of cash collateral pursuant to the stipulation with BONY, including the adequate protection payments of
$4,585.85/mo., subject to any modification by Debtor and BONY. Dkt.71, p.2:24-29.
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Ruthelen property
Grant on a final basis, on the same terms previously ordered, except
as modified by the proposed stipulations between Debtor and Deutsche Bank National Trust Company ("Deutsche") (dkt. 73) and Debtor and Jacob Haiavy et al. ("Haiavy") (dkt. 81). Debtor's obligation includes adequate protection payments of $2,390.62/mo. to Deutsche (dkt.73, p.4:14-19) and
$1,691.67/mo. to Haiavy (dkt.81, p.8:20-24), subject to any modification by Debtor and those creditors.
Proposed orders: Debtor is directed to lodge proposed orders consistent with each of the foregoing tentative rulings, subject to any changes ordered at the hearing, via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/21/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/10/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
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(a) Debtor's motions to use cash collateral (dkt. 37, 38)
Grant on an interim basis, subject to certain conditions, as set forth in
calendars no. 7 and 8 (3/10/20 at 2:00 p.m.).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/10:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
This Court has reviewed both of Debtor's status reports (dkt. 23, 26) and the other filed papers in this case. This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 7 (timely served, dkt.8)
2:00 PM
Plan/Disclosure Statement*: TBD
Continued status conference: 3/10/20 at 2:00 p.m., to be concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20
BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
Docket 962
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/24/20
Docket 96
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 13, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/24/20:
Please see the tentative ruling for the status conference (calendar no. 3, 3/24/20 at 2:00 p.m.)
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 31
Tentative Ruling for 4/7/20:
Appearances required by any counsel who wish to be heard, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Objection to the Sale Motion
At the hearing on 3/24/20 this Court was persuaded to continue this matter to 4/7/20. The tentative ruling remains unchanged: to overrule the objection objection (dkt.104) filed by the Estate of Maynard Poynter, Patricia Poynter, Leah Poynter, Adam Poynter, Sean pointer and Melissa O’Donnel (collectively "Poynter"). The parties should be prepared to address the issues raised in that objection and in Debtor's reply papers (dkt.110-12).
Service of the Order Continuing Case Status Conference And Hearing On Sale Motion (the "Scheduling Order," dkt. 115)
At the 3/24/20 hearing, this Court set a deadline of 3/25/20 for Debtor to serve, via overnight mail or personal delivery, the Scheduling Order on parties not previously served with the Sale Motion (dkt. 96) per Rule 7004 (Fed. R. Bankr. P.) who are directly affected by the Sale Motion, and to file a proof of service evidencing such service. Debtor timely served the Scheduling Order and a notice of the continued hearing and filed a proof of service. See dkt. 117, 118.
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The docket does not reflect any oppositions or other responses to the relief requested by Debtor in the sale motion and accompanying papers. The tentative ruling is that any objections by any parties other than Poynter are waived, and alternatively forfeited.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/12/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/24/20:
Appearances required by any counsel who wish to be heard, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
No witnesses required
2:00 PM
No witnesses need appear (either by telephone or in person), because no evidentiary issues are presented at this time.
Objection to the Sale Motion
The tentative ruling is to overrule the objection objection (dkt.104) filed by the Estate of Maynard Poynter, Patricia Poynter, Leah Poynter, Adam Poynter, Sean pointer and Melissa O’Donnel. The parties should be prepared to address the issues raised in that objection and in Debtor's reply papers (dkt.110-12).
Service of the Sale Motion on certain other persons
Debtor’s proof of service ("POS," dkt. 101) appears insufficient. The tentative ruling is that the hearing will have to be continued to provide notice to persons who have not received adequate notices.
For example, Debtor proposes to sell/assign to Mariculture a license issued by the U.S. Army Corps of Engineers (the "Corps") (see dkt. 111, Ex.1(ii) (APA), Schedules 1.1 & 1.3, at PDF pp.35 & 41). But there are two problems with any attempted service on the Corps:
No service on the Corps itself. The Corps is listed on the proof of service with its mailing address crossed out and the notation "1/2/20 Unable to Forward" (dkt. 101, p.5, middle of right column); and
No service on U.S. Attorney and Attorney General. The Corps appears to be an "agency of the United States" so a copy of the motion papers should have been "addressed to the civil process clerk at the office of the United States Attorney" for this district (whose address is available on this Court’s website, www.cacb.uscourts.gov under "Government Units’ Mailing Address," section 2.4(a)) and to the "Attorney General of the United States at Washington, District of Columbia" (same, section 2.4(b)). Rule 7004(b) (4)&(5) (emphasis added) (incorporated by Rule 9014(b)).
There appear to be similar problems with service on other entities. For example, although Debtor’s sale materials (dkt. 100, at PDF p.16) identify a "National Oceanic and Atmospheric Administration (NOAA) Aquaculture Permit dated February 28, 2017" as one of the assets to be sold, and Schedules 1.1 and 1.3 of the APA (dkt. 111 at PDF pp. 35 & 41) also reference "permits and consents and conditions" imposed by NOAA, the POS does not appear to include NOAA or its representative. Similar issues appear to apply regarding the California Coastal Commission, Titan Steel Structures,
2:00 PM
and other parties to various executory contracts. See dkt. 111, Ex. 1(ii) (APA), Schedule 1.3, at PDF p. 41, and see Rule 7004(b)(3) (service on organizations) and (b)(6) (service on States, or governmental organizations thereof).
The tentative ruling is that it is appropriate to shorten time under Rule 9006(c) because of the exigent circumstances of Debtor having no funds to continue operating beyond a very short period of time. See dkt. 47, p.7:25; dkt. 79; dkt. 60; dkt. 93; dkt.109. The evidence before this Court is that Debtor’s assets will lose substantial value if not all value if Debtor is unable to pay for care of its mussels and other essential tasks. See dkt. 96,
pp.22:13-24:18; dkt. 99.
Based on the foregoing, the tentative ruling is to set the following deadlines: March 25, 2020 for Debtor to serve via overnight mail or personal delivery any entities whose interests are directly affected by the Sale Motion and who have not already been served in compliance with Rule 7004 (or who have waived such service), and to file a proof of service; April 3, 2020 for those entities to file and serve any response; and April 6, 2020 at noon for any reply papers. A continued hearing is tentatively set for April 7, 2020 at 2:00 p.m.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/7/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
2:00 PM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's status report (dkt. 103), and has no issues to raise sua sponte. The parties are directed to address any issues they have.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/24/20 at 2:00 p.m., with no status report required, per this Court's scheduling order (dkt. 87).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 1/7/20:
Appearances required by counsel for the debtor and by the debtor's principal.
Current issues
This Court has reviewed Debtor's status report (dkt.39). There is no tentative ruling but parties in interest may address scheduling and procedures for Debtor's anticipated DIP financing motion, 363(f) sale motion, etc.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 2/4/20 at 1:00 p.m., brief status report due 1/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
10:00 AM
4/7/20
Docket 31
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 42
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco Ramon Franco Represented By
10:00 AM
Movant(s):
William G Cort
U.S. Bank National Association, as Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MTGLQ INVESTORS, LP
vs DEBTOR
Docket 95
- NONE LISTED -
Debtor(s):
Robert E Read Represented By Donna R Dishbak
Movant(s):
MTGLQ Investors, LP Represented By Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING INC.
vs DEBTOR
Docket 80
- NONE LISTED -
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 41
- NONE LISTED -
Debtor(s):
Gerald J Dennis Represented By Axel H Richter
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JOSEF BEGELFER
vs DEBTOR
Docket 24
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (# 2:19-bk-24157-NB) was dismissed (on 1/14/20) within one year before this case was filed (on 2/26/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained.
Although Debtor filed a motion under 11 U.S.C. 362(c)(3) (dkt. 8), Debtor did not timely obtain a hearing prior to the expiration of the stay on
10:00 AM
3/27/20. As a result, the automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket # 40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Douglas L. Barcon Represented By Arthur H Lampel
10:00 AM
Movant(s):
Josef Begelfer, Trustee of the Josef Represented By
Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 42
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order, and/or (c) whether they will agree to a forebearance agreement (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rafael Macias Represented By
10:00 AM
Kevin T Simon
Joint Debtor(s):
Silvia Jauregui Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 60
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 63).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Virginia B. Barruga Represented By Donald E Iwuchuku
10:00 AM
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 8
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karelia Rodriguez Represented By Kevin Tang
Joint Debtor(s):
Hector F Araiza Magana Represented By Kevin Tang
Movant(s):
NISSAN MOTOR ACCEPTANCE Represented By
Michael D Vanlochem
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [PP] JPMORGAN CHASE BANK, NA
vs
DEBTOR
Docket 31
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
10:00 AM
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Stavros Damianidis Represented By Daniel King
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 9
Grant in part, deny in part, as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Debtor seeks an order continuing the automatic stay in this case under 11 U.S.C. 362(c)(3), but relief under that section is not necessary or appropriate because Debtor's prior bankruptcy case (Case No. 2:18-
bk-17139-VZ) was dismissed on 12/27/18, which is more than 1-year prior to the 3/25/20 petition date in this case.
In other words, subject subject to any exceptions other than 11 U.S.C.
362(c)(3) (e.g., 11 U.S.C. 362(b) or any orders under 11 U.S.C. 362(d)(4)), the tentative ruling is that the automatic stay is in effect to the full extent provided under 11 U.S.C. 362(a)(1)-(8).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jessica Diaz Reed Represented By Marc A Goldbach
Movant(s):
Jessica Diaz Reed Represented By Marc A Goldbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST, COMPANY
vs DEBTOR
Docket 93
Debtor(s):
Luis B. Rosales Represented By Lionel E Giron
Movant(s):
Deutsche Bank National Trust, Represented By Merdaud Jafarnia Nancy L Lee
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 45
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for Debtor's sale of the subject property to close. This Court has reviewed Debtor's status report (dkt. 56), which states that escrow is scheduled to close 4/17/20. There is no tentative ruling, but the parties should be prepared to provide an update on whether the sale has closed and Movant's claim has been paid in full.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 3/31/20:
Continue this motion for relief from the automatic stay to 4/21/20 at 10:00 a.m., in view of Debtor's motion to sell the property and order thereon (dkt. 47, 51), and with Debtor directed to file and serve a status report no later than 4/14/20. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia Ann Oliver Represented By
Hale Andrew Antico
Movant(s):
Nationstar Mortgage LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BRIDGECREST CREDIT COMPANY, LLC
vs DEBTOR
Docket 26
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date for Debtor to make the 3/14/20 payment and for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to provide an update on whether Movant has received that payment and the status of any settlment discussions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
10:00 AM
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Clara Lila Gonzales Represented By Steven A Alpert
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ABS LOAN TRUST VI
vs DEBTOR
Docket 38
Tentative Ruling for 4/21/20 (same as for 3/31/20):
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for Movant to confirm whether the alleged arrears have been brought current. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosa Candida Perez Represented By Thomas B Ure
Movant(s):
ABS Loan Trust VI Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 06/11/19, 07/02/19; 08/06/19, 9/17/19, 10/15/19, 02/18/20, 03/31/20
NATIONAL MORTGAGE, LLC
vs DEBTOR
Docket 62
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the previous hearing, this Court was informed that the parties were close to finalizing an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
10:00 AM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the previous hearing, this Court was informed that Movant's counsel was awaiting information from Movant about whether the loan is postpetition current or reinstated. There is no tentative ruling, but the parties should be prepared to address (a) whether the Chapter 13 Trustee has received the information she requested, (b) whether the alleged arrears have been brought current and/or (c) whether some other disposition is appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20 (same as for 10/15/19):
Appearances required. At the previous hearing, this Court was informed that the Chapter 13 Trustee had not yet received certain information requested from Movant. There is no tentative ruling, but the parties should be prepared to address (a) whether the Chapter 13 Trustee has received the information she requested, (b) whether the alleged arrears have been brought current and/or (c) whether some other disposition is appropriate.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/17/19:
Appearances required. At the previous hearing, Movant informed this Court that it had provided the Chapter 13 Trustee with a payoff statement and that the Chapter 13 Trustee required further accounting. There is no tentative ruling, but the parties should be prepared to address (a) the status of that further accounting, (b) whether the alleged arrears have been brought current and/or (c) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/6/19:
Appearances required. At the previous hearing, the parties noted that another of Debtor's properties had been sold and that Movant's debt may be paid in full out of the proceeds. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 7/2/19:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
10:00 AM
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nichole Glowin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CHRISTOPHER BECKER
vs DEBTOR
Docket 76
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Movant(s):
Christopher Becker Represented By Shirlee L Bliss
10:00 AM
fr. 3/3/20, 4/7/20
Docket 15
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
11:00 AM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
Docket 14
Please see the tentative ruling for the adversary proceeding status conference (Calendar no. 3, 4/21/20 at 11:00 a.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
Trustee(s):
Caroline Renee Djang (TR) Pro Se
11:00 AM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
Docket 11
Grant, with a deadline of 4/24/20 for Defendants to file their proposed answer (adv. dkt. 12, Ex.G).
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis
Applicable Standard
Civil Rule 55(c) (Fed. R. Civ. P.), made applicable to these proceedings by Bankruptcy Rule 7055 (Fed. R. Bankr. P.), provides: "The Court may set aside an entry of default for good cause." "The 'good cause' standard that governs vacating an entry of default under Rule 55(c) is the same standard that governs vacating a default judgment under Rule 60(b)." Franchise Holding II, LLC v. Huntington Restaurants Grp., Inc., 375 F.3d 922, 925 (9th Cir. 2004). The Court may deny a motion to vacate a default for any of the following reasons: "(1) the plaintiff would be prejudiced if the judgment is set aside, (2) defendant has no meritorious defense, or (3) the defendant's culpable conduct led to the default." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1108 (9th Cir. 2000, as amended on denial of reh'g (Nov. 1, 2000). Because "[t]his tripartite test is disjunctive" the Debtor/Plaintiff is required only to demonstrate that one of the factors applies in order for this Court to deny the motion to vacate default. Id. However, "judgment by
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default is a drastic step appropriate only in extreme circumstances; a case should, whenever possible, be decided on the merits." United States v.
Signed Pers. Check No. 730 of Yubran S. Mesle, 615 F.3d 1085, 1098 (9th Cir. 2010).
Debtor has not demonstrated that she would be prejudiced by vacatur of the default
To constitute prejudice, the harm that would result from setting aside the entry of default must be something more than delay or the costs associated with the litigation itself. TCI Group Life Insurance Plan v.
Knoebber, 244 F.3d 691, 701 (9th Cir. 2001), overruled on other grounds by Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S. 141 (2001). Merely "being forced to litigate on the merits" is not considered prejudice. Id. "The delay must result in tangible harm such as loss of evidence, increased difficulties of discovery, or greater opportunity for fraud or collusion." Id.
In this case, the Clerk of the Court entered default on 3/13/20 (adv. dkt. 9, 10) and Defendants timely moved to set aside default on 3/27/20 (adv. dkt. 11). Debtor argues that setting aside the defaults would prejudice her because she would be forced to incur attorneys' fees to litigate the dispute but, as set forth above, increased litigation costs is not a sufficient basis to deny the motion. Debtor also argues that setting aside default would prejudice her creditors because further delay in removing Defendants' liens will prevent her from refinancing the property and paying her creditors. But this argument puts the cart before the horse because there is no guarantee that Debtor will prevail on her claims and, even if she does, Debtor has not established why she would be unable to propose a plan that keeps Defendants' liens in place or obtain financing that primes Defendants' liens.
Furthermore, if this were a sufficient basis to deny a request for relief from default, Bankruptcy Courts would almost never find it appropriate to set aside defaults. Therefore, the tentative ruling is that Debtor has not made a sufficient showing that she would be prejudiced by vacatur of the defaults.
This factor weighs in favor of setting aside the defaults.
Defendants have a meritorious defense
A party has a meritorious defense if "there is some possibility that the outcome of the suit after a full trial will be contrary to the result achieved by the default." Hawaii Carpenters’ Trust Funds v. Stone, 794 F.2d 513 (9th Cir.
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1986). The burden of demonstrating a meritorious defense "on a party seeking to vacate a default judgment is not extraordinarily heavy." Knoebber, 244 F.3d at 700. "All that is necessary to satisfy the ‘meritorious defense’ requirement is to allege sufficient facts that, if true, would constitute a defense: ‘the question whether the factual allegation [i]s true’ is not to be determined by the court when it decides the motion to set aside the default.
Rather, that question ‘would be the subject of the later litigation.’" Mesle, 615 F.3d 16 1094.
Defendants have satisfied the meritorious defense requirement by showing that there is, at a minimum, "some possibility" that they will not be found liable on the claims asserted in the Complaint after a full trial.
Defendants have attached a proposed answer to the motion which denies certain allegations of the Complaint and contains affirmative defenses (adv. dkt. 12, Ex.G). If Defendants prevail on the disputed factual allegations or have a successful defense, the outcome of the suit would be contrary to the result achieved by default.
While Debtor makes several arguments as to why Defendants purportedly would lose at trial, these are questions of fact that are not appropriately determined in the context of a motion to set aside entry of default.
Therefore, this factor is satisfied in Defendants’ favor.
Defendants’ failure to timely respond to the Complaint was not culpable
A "defendant’s conduct is culpable if he has received actual or constructive notice of the filing of the action and intentionally failed to answer . . . Neglectful failure to answer as to which the defendant offers a credible, good faith explanation negating any intention to take advantage of the opposing party, interfere with judicial decision-making, or otherwise manipulate the legal process is not ‘intentional’ under our default cases, and is therefore not necessarily . . . culpable." Knoebber, 244 F.3d 691, 697-98 (emphasis in original).
Defendants have offered a good faith explanation for their failure to timely respond to the Complaint and this Court is not persuaded to find that Defendants intentionally failed to answer to gain some kind of tactical advantage over Debtor in this proceeding. As Debtor’s counsel should be well aware, sometimes filing deadlines are inadvertently missed and parties should not be penalized by their attorneys’ excusable neglect. This factor
11:00 AM
weighs in Defendants’ favor.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
Trustee(s):
Caroline Renee Djang (TR) Pro Se
11:00 AM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
section 548; 5) Recovery and preservation of avoided transfers pursuant to 11 U.S.C. sections 550(a), 551; 6) Unfair Practices under California Business & Professions code section 17200; and 7) Slander of title
Docket 1
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor/Plaintiff's ex parte motion for retroactive extension to file opposition to defendant's motion to set aside default (adv. dkt. 20), order setting hearing (adv. dkt. 22)
Subject to any opposition at the hearing, the tentative ruling is to grant the motion.
Defendants' motion to set aside entry of default (adv. dkt. 12, the "Relief From Default Motion"), Debtor/plaintiff's opposition (adv. dkt. 19), Defendants' reply (adv. dkt. 25)
Grant, as set forth in the tentative ruling for calendar #2 (4/21/20 at 11:00 a.m.).
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Debtor/Plaintiff's motion for entry of default judgment (adv. dkt. 14), order suspending briefing deadlines (adv. dkt. 17, "Default Judgment Motion")
If this Court is persuaded to adopt its tentative ruling for the Relief From Default Motion, the tentative ruling is to deny this motion as moot.
Missing status report(s)
As of the preparation of this tentative ruling, none of the parties have filed joint or unilateral status reports. The parties are cautioned that failure to file status reports in future may result in adverse consequences.
Debtor's duties as a trustee for the benefit of creditors
The tentative ruling is that, as a debtor in possession in a Subchapter V case, Debtor still must exercise discretion in managing the bankruptcy estate as a trustee for the benefit of creditors. See 11 U.S.C. 1101(1), 1181(a) (making section 1107 inapplicable), 1187 (making many duties applicable). This Court has previously expressed concerns about Debtor's similar tactics against creditor National Commercial Recovery ("NCR"). See adv.dkt.25, pp.10:1-24 & 14:3-17.
In particular, the tentative ruling is that Debtor must make a cost/benefit assessment in connection with all litigation in this bankruputcy case. Debtor is directed to address how her tactics in this matter are consistent with her duties to creditors.
Why is it cost-effective to pursue this litigation seeking to establish that Defendants lack a secured claim, when Debtor anticipates a 100% dividend to all creditors regardless whether they are secured or unsecured?
Why has Debtor not pursued options that might stop the running of high rates of interest on this and other claims, such as expeditiously seeking confirmation of a plan, or selling or refinancing properties.
In other words, is this litigation a waste of resources and time that would be better spent on other matters?
Proposed orders: Defendants are directed to lodge proposed orders on each of the foregoing motions via LOU within seven days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 5/8/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
11:00 AM
This adversary proceeding has been pending since 2/10/20.
[Remainder intentionally omitted.] Continued status conference 9/15/20 at 11:00 a.m., with a joint status report due 9/1/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolvingt this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Pro Se
Adam Landis Lomax Pro Se
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
11:00 AM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
Docket 20
Please see the tentative ruling for the adversary proceeding status conference (Calendar no. 3, 4/21/20 at 11:00 a.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
Trustee(s):
Caroline Renee Djang (TR) Pro Se
11:00 AM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
fr. 07/30/19, 9/24/19, 12/17/19, 02/18/20, 3/3/20
Docket 1
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (adv.dkt. 18) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number 18).
Mediation
Is there is any reason why this Court should not order the non-settling
11:00 AM
parties (i.e. Plaintiff/Trustee and Defendant Salgado) to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 5/5/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 5/10/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 7/17/20 deadline. Discovery cutoff (for completion of discovery): 7/31/20.
Expert(s) - deadline for reports: 8/7/20.
Expert(s) - discovery cutoff (if different from above): 8/14/20. Dispositive motions to be heard no later than: 9/29/20 at 11:00 a.m. Joint Status Report: 9/14/20.
Continued status conference: 9/29/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/27/20.
Pretrial conference: 11/10/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 11/10/20 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 11/17/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Pro Se
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
fr. 3/3/20
Docket 158
Debtor(s):
Enrique Peralta Represented By Thomas B Ure
Joint Debtor(s):
Rosa Estrada Represented By
Thomas B Ure
Movant(s):
Enrique Peralta Represented By Thomas B Ure Thomas B Ure
Rosa Estrada Represented By
Thomas B Ure
Trustee(s):
Wesley H Avery (TR) Represented By Tamar Terzian
11:00 AM
Docket 34
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's orders regarding whether to dismiss this case and whether or not to include a bar (dkt. 34, 43) and the responses filed by American Financial Center, Inc. (dkt. 45, 46, 47, 48, 53).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Birgitta Lauren Knipe Represented By Andrew P Altholz
11:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 39
Please see the tentative ruling for calendar no. 7 (4/21/20 at 11:00 a.m.).
Debtor(s):
Birgitta Lauren Knipe Represented By Andrew P Altholz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 29
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Migan Murray Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
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Docket 97
Please see the tentative ruling for the status conference (Calendar no. 3, 4/21/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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Docket 98
Please see the tentative ruling for the status conference (Calendar no. 3, 4/21/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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Docket 5
Tentative Ruling for 4/21/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion to Quash (dkt.97, 98) filed by Dos Cabezas Properties, LLC & Criscione-Meyer Entitlement, LLC's (collectively, "Cabezas"), Debtor's omnibus opposition (dkt. 104), Cabezas' omnibus reply (dkt. 113)
As a preliminary matter, the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), do not permit parties to file written motions to compel or quash discovery, but instead direct parties to call chambers to arrange a telephonic conference, at which time Judge Bason may rule on oral motions and oppositions without the need for such papers (id., Section I.D). But the tentative ruling is to waive compliance with these procedures, with a caution to counsel that failure to review and familiarize themselves with the Procedures in future may result in adverse consequences.
Turning to the merits, the tentative ruling is as follows.
Background
On 1/17/20, Debtor filed a motion for 2004 examination and production
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of documents seeking an order directing the production of documents and appearances at an oral examination by the persons most knowledgeable for Cabezas (dkt. 62, 63, 64, the "2004 Motion"). On 1/24/20, this Court entered an order granting the 2004 Motion (dkt. 69). Cabezas responded by filing separate, but virtually identical Motions to Quash (dkt. 97, 98), and the opposition and reply papers are omnibus. Accordingly, this Court’s analysis is the same for both motions.
Jurisdiction
Cabezas argues that this Court does not have jurisdiction over their specific performance claim because the claim is not "related to" the bankruptcy proceeding and involves purely matters of state law (dkt. 97, 98, p.5:8-14). In support of this argument, Cabezas cites Vacation Village, Inc.
v. Clark County, Nev., 497 F.3d 902, 911 (9th Cir. 2007), in which the Court of Appeals for the Ninth Circuit quotes Celotex Corp. v. Edwards, 514 U.S. 300, 307 n.5 (1995), a Supreme Court decision describing "related to" jurisdiction as "including" certain matters. (Emphasis added.) But Celotex does not define the limits of "related to" jurisdiction, and Celotex cited with approval the Third Circuit’s seminal case of Pacor, Inc. v. Higgins, 743 F.2d 984 (1984), which states:
the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. [citations omitted]. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. [Celotex, 514 U.S. 300, 307 n.5 (emphasis in original)]
Although the Supreme Court did not expressly adopt the Pacor test for determining "related to" jurisdiction, the Ninth Circuit has adopted it (see In re Fietz, 852 F.2d 455, 457 (9th Cir. 1988) ("We therefore adopt the Pacor definition quoted above [and] . . . reject any limitation on this definition").
Cabezas has not cited any authority that the Ninth Circuit has abandoned the Pacor test. Therefore, the tentative ruling is that this Court has "related to" jurisdiction because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
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This Court’s determination that it has "related to" jurisdiction is not
undermined by this Court’s recent tentative ruling (available at www.cacb.uscourts.gov, Calendar no. 26, 3/31/20 at 11:00 a.m.) that mandatory abstention requires this Court to remand the State Court litigation in which Cabezas' claims arose. First, that tentative ruling includes a finding that this Bankruptcy Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1). Second, whether this Court must abstain from hearing a claim is entirely different from whether this Court has any jurisdiction over the claim in the first instance.
Service of subpoenas
Cabezas asserts that Debtor’s 2004 Motion was not effective because they have not been served with subpoenas (dkt. 97, 98, p.8:24-9:5). Debtor does not address this argument in its opposition, but the tentative ruling is that Cabezas is correct that they must be served with subpoenas (see Local Bankruptcy Rule 2004-1(b)(e) ("If the court approves a Rule 2004 examination of an entity other than the debtor, the attendance of the entity for examination and for the production of documents must be compelled by subpoena issued, and served pursuant to FRBP 9016 and F.R.Civ.P. 45").
But the tentative ruling is that this alone is not a sufficient basis to grant the motion, as opposed to continuing the motion to allow service.
Scope of discovery, and meeting and conferring
Cabezas argues that the 2004 Motion should be quashed because the requested production and scope of examination are vague and overly broad and because Debtor did not comply with applicable local rules requiring the parties to meet and confer. The tentative ruling is to overrule these objections. There is sufficient evidence of attempts to meet and confer, and the scope of discovery under Rule 2004 is well recognized as very broad.
Local Bankruptcy Rule 2004-1(b)
Cabezas argues that the 2004 Motion should be quashed because Debtor failed to comply with Local Bankruptcy Rule ("LBR") 2004-1(b), which requires, in relevant part, that a motion "explain why the examination cannot proceed under FRBP 7030 or 9014," because there was a pending adversary proceeding in this Bankruptcy Court at the time the 2004 Motion was filed (dkt. 97, 98, p.7:7-18). But LBR 2004-1(b) is subject to this Court’s discretion (see LBR 1001-1(d) ("The Local Bankruptcy Rules apply uniformly throughout the district, but are not intended to limit the discretion of the court. The Court may waive the application of any Local Bankruptcy Rule in any case or
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proceeding, or make additional orders as it deems appropriate, in the interest of justice")).
In exercising its discretion, this Court considers two relevant circumstances. First, Rule 2004(a) (Fed. R. Bankr. P.) states that the court "may" order the examination of any entity, not "must," so such discovery is within this Court's discretion. (Emphasis added.) Second, Rule 45(d)(3)(A)
(Fed. R. Civ. P.), provides that this Court "must quash or modify a subpoena that: . . . subjects a person to undue burden," so this Court must assess how much burden is "undue." (Emphasis added.)
The tentative ruling is that this Court is not persuaded to quash the 2004 Motion on this ground because, as Debtor highlights, the adversary proceeding referenced by Cabezas has been dismissed (see 2:20-ap-01008- NB, dkt. 11). This Court recognizes that there is a pending motion to vacate the dismissal order, but at most that warrants continuing the motion to quash, not granting it at this point.
Interference with State Court litigation
In a more persuasive argument, Cabezas asserts that permitting Debtor to conduct discovery in this Court is fundamentally unfair and inequitable because it would permit Debtor to circumvent state discovery rules (dkt. 97, 98, p.7:19-8-4). The tentative ruling is that it is appropriate to quash the 2004 Motion, both in the exercise of this Court’s discretion under Rule 2004 and, alternatively, in assessing how much burden is "undue" under Rule 45.
The tentative ruling is that this Bankruptcy Court should defer to the State Court's management of this discovery, for two reasons. First, it appears appropriate that the same forum that will be deciding the merits of the parties’ dispute should also determine the scope of discovery and resolve any discovery disputes.
Second, the same policies that underly the principle of not permitting discovery under Rule 2004 when there is a pending adversary proceeding or contested matter also apply when there is pending state court litigation. See, e.g., In re Washington Mut., Inc., 408 B.R. 45, 50 (Bankr. D. Del. 2009) ("In addition to restricting use of Rule 2004 examinations when proceedings are pending against the examinee in the bankruptcy court, courts have also recognized that Rule 2004 examinations may be in appropriate ‘where the party requesting the Rule 2004 examination could benefit their pending litigation outside of the bankruptcy court against the proposed Rule 2004
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examinee.’") (internal citations omitted).
In this case, the tentative ruling is that permitting Debtor to proceed with discovery under Rule 2004 when there is a pending state court proceeding would be improper and impose an undue burden on Cabezas because Rule 2004 is broader in scope than the ordinary rules of discovery and does not afford Cabezas the same rights and protections. See 9 Collier on Bankruptcy ¶ 2004.01 (16th 2020); In re Dinubilo, 177 B.R. 932, 939-40 (Bankr. E.D. Cal. 1993) ("in a Rule 2004 examination: the witness has no right to be represented by counsel . . . there is only a limited right to object to immaterial or improper questions; there is no general right to cross-examine witnesses; and no right to have issues defined beforehand").
Conclusion
For the reasons stated above, the tentative ruling is that protective orders are warranted because the discovery sought from Cabezas overlaps with the issues being litigated before the State Court and potentially gives Debtor an unfair advantage in that action. Unless and until Debtor shows otherwise, it appears appropriate to stay all discovery sought from Cabezas absent further order of this Court.
Proposed orders: Cabezas is directed to lodge two proposed orders - one on each of the foregoing motions - via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Monthly Operating Reports ("MORs")
As of the preparation of this tentative ruling, Debtor has not filed its March MOR. The tentative ruling is that delays or failure to file MORs may be grounds for various adverse consequences, potentially including conversion or dismissal of this bankruptcy case. This Court can assess such issues at future status conferences, or upon a motion by the United States Trustee or other parties in interest.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
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Continued status conference: 5/12/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash Collateral Motion (dkt. 73)
Grant on a final basis, on the same terms and subject to the same modifications set forth in the interim order authorizing use of cash collateral (dkt. 91).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 6/2/20 at 1:00 p.m. Brief written status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor.
Current issues
Cash Collateral Motion (dkt. 73)
Grant in part and deny in part. See the tentative ruling for calendar no.
18.10 (2/18/20 at 1:00 p.m.).
Explanation of business
Debtor's proposed budget (dkt.73, Ex.A) lists wildly fluctuating income, from highs of $45,028 in February 2020 and $37,114 in March 2020 to lows of $2,200 in May and June 2020. Why?
This Court recognizes that the same budget lists historical fluctuations for 2019. The net income ranges from a high of $38,366 in March 2019 to a low of $0 in July and August of 2019, and only $2,500 in June 2019 and
$3,300 in May 2019. Again, however, there is no explanation. In addition, Debtor's Statement Of Financial Affairs (dkt.28, line 1) lists gross revenues of approximately $500,000 per year for 2017, 2018 and 2019. What accounts for (i) the wild fluctuations in net income and (ii) the lack of consistent profit despite substantial and seemingly stable gross annual revenues?
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Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Monthly operating reports ("MORs")
Debtor's MORs have been filed late, and they appear to show unauthorized adequate protection payments (see dkt.68, pp.15, 29) and unpaid US Trustee fees (id., p.30). Why?
Cash collateral
Debtor's initial status report (dkt.27, at PDF pp.3-5) stated that there was no immediate need to obtain authorization for use of cash collateral because Debtor has no employees or operations. Debtor's latest status report (dkt.60, p.3:9-20) sugests that productive negotiations have taken place with the creditor holding an interest in cash collateral and that Debtor intends to self-calendar a motion approving the use of cash collateral for 2/4/20. What is the latest status of those matters?
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Employing broker and filing sale motion
Debtor is directed to address the status of its plans to employ a real
estate broker, sell its properties (11 U.S.C. 363(b) & (f)). Those things typically are "first day" motions. But as of this continued status conference it will have been two months after the petition date and those matters are not on the calendar. Why not?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 2/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor (see dkt. 21, excusing debtor's appearance).
Current issues
Has Debtor ceased all operations?
Debtor's status report gives the impression, but does not quite state, that Debtor is not conducting any business operations at this time (dkt. 27, p. 3). Debtor is directed to confirm this, or disclose if that is not so, at the hearing.
Budget motion
Debtor's status report states that a budget motion is not required by the presiding judge's procedures. Dkt. 27, p.5. That is wrong (see posted
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Procedures, available at cacb.uscourts.gov), but the tentative ruling is to excuse this requirement with a caution to counsel not to mis-state the applicable procedures.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 1/28/20 at 1:00 p.m., brief status report due 1/14/20. Debtor is directed to appear in person, through its designated representative.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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(2) Allowing Post-Petition Rent and Charges as an Administrative Expense Under 11 U.S.C. § 503(b); and (3) Compelling Immediate Payment of such Rent and Charges; or, in the Alternative, for an Order to Show Cause as to Why the Lease Should Not be Deemed Rejected and the Property Returned to the Landlord
Docket 85
Please see the tentative ruling for the status conference (Calendar no. 5.1, 4/21/20 at 1:00 p.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
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CHRISTOPHER BECKER
vs DEBTOR
Docket 76
Tentative Ruling for 4/21/20:
Grant in part, deny in part, as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis
Procedural issues
This matter was continued to this date to allow Movant time to address certain service issues identified in this Court's tentative ruling for 4/7/20 (see section 1, below). This Court has reviewed Movant's amended proof of service (dkt. 99) and unauthorized supplemental brief (dkt. 100). As of the preparation of this tentative ruling, no opposition is on file. Therefore, the tentative ruling is to adopt the tentative ruling for 4/7/20 (see sections 2 & 3, below), supplemented as follows.
Limited relief
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The tentative ruling is to modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate
The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues
Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
In limiting the nonbankruptcy litigation as set forth above, this Bankruptcy Court emphasizes that it does not seek in any way to impinge on the authority of the Nonbankruptcy Courts presiding over the nonbankruptcy action. Rather, this Bankruptcy Court takes seriously its obligations, as a subordinate unit of the District Court, to manage this bankruptcy case. Those obligations include taking into consideration the interests of creditors (who are not parties to the underlying nonbankruptcy litigation), and preserving the bankruptcy estate by placing limits on any relief from the automatic stay that Congress has mandated (11 U.S.C. 362(a) & (d)).
Proposed order: Movant is directed to lodge a proposed order via LOU
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within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling. See LBR
9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required. Pursuant to Judge Bason's COVID19 Procedures,
ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further
notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Service
The proof of service does not show service on the following parties:
Top 20 unsecured creditors
Service is required on the creditors included in the list filed pursuant to Rule 1007(d) (Fed. R. Bankr. P.), pursuant to Rules 4001(a)(1) and 9014(a).
Both Debtor's counsel and Debtor itself
Service is required not only (i) on Debtor's counsel but also (ii) on Debtor itself ("double service"), pursuant to Rules 7004(b)(9)&(g) and 9014(a)&(b). In addition, service on Debtor must be addressed to it at its address of record (listed on this Court's docket) and the address must include "Attn: Officer or Managing/General Agent" or the like. See Rule 7004(b)(3) (requiring service "to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process and, if the agent is one authorized by statute to receive service
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and the statute so requires, by also mailing a copy to the [debtor]").
The tentative ruling is that this Court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non-bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
Based on the foregoing, the tentative ruling is to continue this hearing
to 4/21/20 at 1:00 p.m., with corrected service and a filed proof of service required no later than 4/9/20. The tentative ruling is to shorten time (per Rule 9006) such that, if service is made on that date then the hearing can go forward on the stated date, and with any opposition papers due 4/16/20 and any reply due 4/20/20 at noon.
In the interests of efficiency and completeness, this Court now turns to the tentative ruling on the merits. The following tentative ruling is based solely on the motion papers, and is subject to change in the event of any opposition (after Movant has re-served the motion papers).
"Cause" for relief
The motion papers state that Movant seeks a nondischargeable judgment based on alleged fraud. The tentative ruling is that this is not sufficient cause for relief. Although claims arising from fraud generally are nondischargeable for individual debtors under 11 U.S.C. 523, that section does not apply to non-individual debtors in chapter 11. See 11 U.S.C.
1141(d)(2).
That said, the tentative ruling is that there is still "cause" for relief from the automatic stay within the meaning of 11 U.S.C. 362(d)(1) for two alternative reasons that are apparent from the motion papers. (a) The nonbankruptcy litigation may resolve any disputes regarding the claims and counterclaims. In addition, (b) the nonbankruptcy litigation involves another named defendant, as well as "Doe" defendants.
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or
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previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) - inapplicable in this case - and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017)). The tentative ruling is to deny that request because there is no showing of multiple bankruptcy cases that were part of a scheme to hinder, delay, or defraud creditors, or other sufficient grounds for such relief.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Movant(s):
Christopher Becker Represented By Shirlee L Bliss
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Docket 1
Tentative Ruling for 4/21/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of landlord MAC LCBNA, LLC ("Landlord") for immediate payment of post-petition rent and lease obligations as an administrative expense claim (dkt. 85), debtor's notice of sublease rejection (dkt. 89), stipulation for rejection of sublease (dkt. 90) and other thereon (dkt. 92), debtor's opposition (dkt. 95), Landlord's reply (dkt. 104)
The tentative ruling is to grant the motion in part, deny in part, as follows.
Rejection of lease
The tentative ruling is to deny as moot Landlord’s request for an order to show cause as to why the lease should not be deemed rejected, in view of the parties’ stipulation for rejection of the lease and order thereon (dkt. 90, 92).
Landlord is entitled to an administrative claim for postpetition rent and charges (11 U.S.C. 365(d)(3))
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Landlord seeks an order directing debtor to immediately pay it all
outstanding post-petition rent and charges in the amount of $124,722.12 pursuant to section 365(d)(3) or, alternatively, for allowance of an administrative expense claim under section 503(b)(1). Debtor apparently does not dispute that, mathematically, the amounts payable under the lease amount to that total; but Debtor does appear to assert defenses based on an alleged lack of water pressure at the premises, and/or setoff or recoupment.
First, the parties' factual disputes are not properly presented for decision at this time: they would require further briefing and/or an evidentiary hearing. Meanwhile this Court will address the legal issues.
Second, Debtor does not address Landlord’s entitlement to payment under section 365(d)(3), but argues that Landlord has not carried its burden under section 503(b)(1). The tentative ruling is that Landlord is entitled to an order allowing it an administrative priority claim under section 365(d)(3) in the full contractual amount of $124,722.12, subject to any nonbankruptcy defenses and setoffs/recoupments. See In re LPM Corp., 300 F.3d 1134, 1138 (9th Cir. 2002) ("claims for post-petition rent arising under 365(d)(3) are entitled to administrative priority, even if those claims exceed the reasonable value of the debtor’s actual use of the property"). This Court need not address whether Landlord would also be entitled to an administrative claim under section 503(b)(1).
Landlord is not entitled to immediate payment of amounts remaining unpaid at this time
The tentative ruling is that Landlord is not entitled to immediate payment of unpaid postpetition rents and other charges at this time. To be clear, the statute does direct any debtor to make immeditate payment. But the statute does not specify the consequences for failing to do so.
Under applicable decisions interpreting the statute, the consequences may include that (x) such non-payment may be grounds for relief from the automatic stay, (y) such non-payment may be grounds for terminating the leasehold interest (which Landlord requested and which Debtor has acceeded to and this Court has approved), and (z) such non-payment may give rise to an administrative priority claim. But, in view of the possibility that the estate may be administratively insolvent, the tentative ruling is that Landlord is not entitled to immediate payment of the rent that should have been paid before.
Landlord is not the only administrative claimant, all of whom should be
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paid, but if there is not enough money to pay all administrative claims then Landlord would be receiving a super-priority. In an analogous situation the Court of Appeals for the Ninth Circuit has held that unpaid rent under section 365(d)(3) is entitled to administrative priority, but not a superpriority over chapter 7 administrative expenses. In re LPM Corp., 300 F.3d at 1137-38.
The Ninth Circuit did not specifically address whether such rent claims have a superpriority over chapter 11 administrative claims, but the Ninth Circuit’s reasoning in LPM applies with equal force to chapter 11 administrative expenses.
In addition, among the cases cited by LPM with approval is the decision in In re Tel-Central Communications, Inc., 212 B.R. 342, 348 (Bankr.
W.D. Missouri 1997), which held that "if a lessor of a Chapter 11 debtor has not been paid post-petition in accordance with the mandate in sections 356(d)
(3) and 365(d)(10) prior to the conversion of the case to a Chapter 7 proceeding, the lessor has a Chapter 11 administrative expense claim that cannot be paid until it is determined whether the bankruptcy estate has sufficient funds to pay all of the Chapter 7 and Chapter 11 administrative expenses." (Citation omitted, emphasis added.) The tentative ruling is that the reasoning in T-Central is sound.
In sum, Landlord is not entitled to immediate payment at this time.
Landlord is not entitled to an administrative priority for its attorney fees, and the dollar amount will need to be determined in future
Landlord seeks allowance of $8,500 in attorneys’ fees incurred in bringing this motion. Landlord seeks to include these fees within its administrative priority claim.
Debtor did not specifically object to the request for attorney fees. So the tentative ruling is that any arguments as to the allowability of attorneys fees as a matter of contract, or nonbankruptcy law, have been forfeited and waived, with two caveats.
First, like any default, this Court can exercise its discretion to require a "prove up" hearing or comparable procedures to support the dollar amount of attorney fees and costs. The tentative ruling is that, at an appropriate time to be determined at a future status conference, Landlord would need to file a declaration with daily timesheets. Then Debtor could object to whether Landlord's evidence in support of its fee request is sufficient (but, as is typical in prove up hearings, Debtor could not introduce its own evidence).
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Second, Debtor has objected generally to the asserted administrative
priority of Landlord's claim, and that includes attorney fees in this more general objection. The tentative ruling is that Landlord has not carried its burden to establish that its attorney fees are entitled to an administrative priority.
It is true that, in some circumstances, attorney fees may be accorded administrative priority under section 365(d)(3), as the Ninth Circuit observed in In re Cuckierman, those cases "involved lease agreements under which the delinquent lessee was obligated to pay the lessor’s attorney’s fees on demand as the fees were incurred." 265 F.3d 846, 852 (9th Cir. 2001) (citations omitted, emphasis added). In this case, the relevant fee provision provides:
The prevailing party shall be awarded all costs and expenses including, without limitation, reasonable attorneys’ fees, arising from enforcement of the provisions of this Sublease. The remedies described in this section and the Lease are cumulative and in addition to and without waiver of all remedies allowed Sublandlord by this Sublease, case law, common law or hereafter in effect, and are not mutually exclusive. Subtenant agrees that the rights and remedies granted Sublandlord in this section are commercially reasonable. (dkt. 85, Ex.1, para. 11.5)
The tentative ruling is that this language does not entitle Landlord to immediate payment and, applying the same reasoning in Cuckierman, the tentative ruling is also that any obligation of Debtor to pay Landlord’s attorneys’ fees will have arisen after the lease was rejected and only if this Court adopts its ruling and determines Landlord is the prevailing party. 265 F.3d at 852. At any such point the attorney fee claim will be part of the rejection damages, which are treated as a prepetition claim. See 11 U.S.C. 502(g). See In re SNTL Corp., 571 F.3d 826 (9th Cir. 2009).
In sum, the tentative ruling is that attorney fees are part of Landlord's claim, but Landlord has not established that they are entitled to administrative priority, nor has Landlord provided sufficient evidence to support the precise dollar amount of fees to be awarded as part of its rejection claim. Those things can be determined in future, as discussed below.
Dollar amount of administrative claim, and any nonbankruptcy defense/setoff/recoupment
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The tentative ruling is that it is premature at this time to set any
evidentiary hearing as to rent and other charges, or any prove-up hearing or similar procedures as to attorney fees. It is unclear just how much or how little Debtor might have available to pay administrative priority creditors, and whether this case will have to be converted to chapter 7, in view of Debtor's postpetition lack of substantial revenues (see March MOR, dkt.105) and, more recently, the effects of the COVID-19 pandemic.
Therefore, the tentative ruling is to grant the interim relief set forth above and then take this motion off calendar, without prejudice to seeking at any future status conference to have the motion re-calendared and set for an evidentiary hearing, with associated deadlines.
Proposed order: Landlord is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Christopher Becker's motion for relief from the automatic stay under 11 U.S.C. 362 (action in nonbankruptcy forum) (dkt. 76), Mr. Becker's unauthorized supplemental brief (dkt. 99), amended proof of service (dkt. 100), no opposition is on file
The tentative ruling is to grant in part, deny in part, as set forth in the tentative ruling for calendar no. 5 at 1:00 p.m.
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representation in its status report that it will pursue a sale of all or substantially all of its assets (dkt. 80).
Continued status conference: 6/2/20 at 1:00 p.m. Brief status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue as set forth below. Appearances are not required on 3/31/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Application to employ Weintraub & Selth, APC (the "Firm," dkt. 12), statement of disinterestedness (dkt. 53), order setting hearing and requiring supplemental disclosures (dkt. 61), declarations of Daniel J. Weintraub, Eric Ashenberg, and Linda He (dkt. 74), UST's response (dkt. 75)
Based on this Court's review of the supplemental declarations, the tentative ruling is to grant the motion and authorize the Firm's employment, subject to Judge Bason's standard employment provisions (see www.cacb.uscourts.gov).
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
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Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representation in its status report that it will pursue a sale of all or substantially all of its assets (dkt. 80).
Continued status conference: 4/21/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/4/20:
Appearances required by counsel for Debtor (as orally ruled at the last status conference, Debtor's principals need not appear because they appeared at that status conference).
Current issues
Cash collateral motion (dkt. 19), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24), interim order (dkt. 39).
There is no tentative ruling, the parties should be prepared to update this Court on whether JPMorgan Chase and Fundation Group will consent to the use of their cash collateral.
Utility motion (dkt. 21), supporting declarations (dkt. 23, 25, 26, 32, 33), order setting emergency hearing (dkt. 24),no opposition is on file.
Grant the utility motion on a final basis.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby
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adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Service of order setting principal status conference
This Court's order setting principal status conference and setting various procedures (the "Procedures Order," dkt. 5) required Debtor to serve that order on all parties in interest and file a proof of service at least 14 days before the principal status conference. Debtor's proof of service states that the Procedures Order was only served on the UST, secured creditors and the twenty largest unsecured creditors (dkt. 11).
The tentative ruling is to set a deadline of 2/7/20 for Debtor to file and serve a Notice, with a copy of the Procedures Order attached as an exhibit, informing all parties in interest that "Debtor failed to serve the Procedures Order on all parties in interest as directed by the Bankruptcy Court, which may have prejudiced some parties. The Bankruptcy Court has directed Debtor to serve this Notice, with a copy of the Procedures Order, on all parties in interest, both to inform all parties of the procedures in the Procedures Order and so that any party who was prejudiced by the lack of earlier service has an opportunity to seek any appropriate relief."
In addition, Debtor is cautioned that failure to comply with this Court's orders may result in adverse consequences.
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (see section "(1)(c)" above).
Plan/Disclosure Statement*: file by 5/15/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address whether this Court should grant the relief requested in Debtor's emergency first-day motions (dkt. 19, 20, 21, 23, 25 & 26) and this Court's "Order Granting Oral Request for Emergency Hearing Pursuant to Local Bankruptcy Rule 9075-1(a) and Setting Hearing on Shortened Notice" (dkt. 24).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 106
Grant the application and allow $23,291.00 in fees and $216.73 in expenses, for a total award of $25,507.73, for the current fee period, and approve first interim fees of $19,559.00 and costs of $374.20 on a final basis, for a total final fee award of $43,440.93. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
South Street Brentwood, LLC Represented By Michael Jay Berger
1:00 PM
Docket 135
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 4, 3/10/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
Movant(s):
United States Trustee (LA) Represented By Dare Law
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Docket 42
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
UST's motion to dismiss case (dkt. 135), Debtors' response (dkt. 147, "MTD") and Stark declaration in support (dkt. 150)
The UST should be prepared to address whether there are any remaining compliance deficiencies.
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154)
If this Court is persuaded not to grant the MTD, and if the COVID-19 situation has not changed Debtors' situation enough to warrant deferring any consideration of Debtors' current proposed plan, the tentative ruling is to proceed with Debtor's proposed Plan and Disclosure Statement. The tentative ruling is to direct Debtor to make minor corrections (deleting PDF pp. 9 &11 of the Plan, which are blank), and set a deadline of 4/28/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final
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approval of the Amended Disclosure Statement and confirmation of the Amended Plan for the same time as the continued status conference (see below).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 6/30/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 22
Debtor(s):
Toya Emealda Johnson Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
1:00 PM
Docket 41
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 1
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 44
Please see the tentative ruling for the status conference (Calendar no. 13, 4/21/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Docket 1
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB); In re A Touch of Brass, Inc. (Case No. 2:20-bk-11555- NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-bk-11476-NB). This status conference addresses all three cases.
Chan Budget motion (2:20-bk-11409-NB, dkt. 44)
There is no tentative ruling. This Court is not persauded that it is appropriate to approve Debtor's proposed budget, which lists a negative net monthly income: ($2,684.80). Debtor should be prepared to address whether he anticipates either an increase in income or decrease in expenses in the near future.
Monthly operating reports ("MORs") for Debtor Anthony Chan Debtor Anthony Chan's Amended February MOR (Case No. 2:20-
bk-11409-NB, dkt.53, p.4) lists the number of postpetition payments not made to Bank of America at $0 but lists a very large dollar amount in the column for
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"Total Due" (presumably Debtor's estimate of the entire balance owed). This Court's understanding of the form is that Debtor should be listing the total postpetition payments that are due and unpaid, not the total balance. The United States Trustee ("UST") is requested to clarify this issue at the hearing, and state whether Debtor needs to file a further amended MOR.
In addition, the same MOR lists only a single entry for "food" ($983.15). The UST is requested to clarify whether food entries should be broken down into single items (each grocery bill, each meal at a restaurant, etc.).
In addition, although the MOR lists a single deposit and various expenses in an exactly equal total amount, the expenses are not reflected in the bank statement or any cash ledger or anywhere else. Is that because (i) Mr. Chan arranges for his employment compensation to equal his expenses exactly and (ii) the checks are either (x) drawn on the bank account of Mr.
Chan's employer (his company and co-debtor A Touch of Brass, Inc.), or (y) the checks are drawn on his own bank account but have not yet cleared as of the end of the MOR's period, or (z) some other explanation?
The tentative ruling is to set a deadline of 4/28/20 for Debtor to file and corrected MOR.
Inc.
Monthly operating reports ("MORs") for Debtor A Touch of Brass,
Debtor A Touch of Brass, Inc.'s Amended February MOR (Case No.
2:20-bk-11555-NB, dkt. 71, p.11) has a similar issue regarding postpetition payments. It removes the figures in the "Post-Petition payments not made (Number)" column, but there was no corresponding change to the "Total Due" column, so Debtor still reflects missed postpetition payments to
"CNC Associates" and "Toyota Financial Services" in an amount totaling
$26,018.86.
Debtor is directed to address whether a further amended MOR should address this issue. In any event, Debtor is directed to address (i) what Debtor's financial viability is, (ii) what is the nature of the missed postpetition payments, and (iii) how does its inability to pay these debts impact its ability to reorganize?
Additionally, Debtor did not attach copies of bank statements to this amended MOR. The tentative ruling is to waive that omission in this instance, since those documents are attached to the original February MOR (dkt. 68), but caution Debtor that future MORs should attach bank statements.
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The tentative ruling is to set a deadline of 4/28/20 for Debtor to file and corrected MOR.
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/2/20 at 1:00 p.m. Brief written status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden
1:00 PM
Docket 1
Tentative Ruling for 4/21/20:
Appearances are not required.
Current issues
This case is being jointly administered with In re Anthony Chan (Case No. 2:20-bk-11409-NB), so the tentative ruling is not to hold any separate status conferences in this case in future (unless and until further ordered by this Court).
Deadlines/dates
This case was filed on 2/10/20.
Bar date: 5/5/20 (dkt. 16; timely served, dkt. 17)
Procedures order: dkt.7 (timely served, dkt. 9)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
AC YU CHAN HOLDING, LLC Represented By
Jeffrey I Golden
1:00 PM
Docket 1
Tentative Ruling for 4/21/20:
Appearances required.
Current issues
This case is being jointly administered with In re Anthony Chan (Case No. 2:20-bk-11409-NB), so the tentative ruling is not to hold any separate status conferences in this case in future (unless and until further ordered by this Court).
Deadlines/dates
This case was filed on 2/10/20.
Bar date: 5/5/20 5/5/20 (dkt. 50; timely served, dkt. 60)
Procedures order: dkt.3 (timely served, dkt. 5)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot
1:00 PM
Docket 216
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 02/18/20
Docket 5
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 18, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
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Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20
Docket 1
Tentative Ruling for 4/21/20:
Appearances are not required on 4/21/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 5, as supplemented, dkt. 218)
Grant on a further interim basis, on the same terms and conditions as previously ordered (dkt. 212), except for the revised budget (dkt. 218, Ex.A), through the conclusion of a continued hearing concurrent with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee -
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this Court will set a deadline and procedures at a later time).
Continued status conference: 6/30/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
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[11 U.S.C. Section 327(a), LBR 2014-1]; and to File Interim Fee Applications Using Procedure in LBR 9013-1(o)
Docket 11
Please see the tentative ruling for the status conference (Calendar no. 23, 4/21/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 27
Please see the tentative ruling for the status conference (Calendar no. 23, 4/21/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
fr. 03/31/20
Docket 12
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 23, 4/21/20 at 1:00 p.m.).
Revised Tentative Ruling for 3/31/20:
Grant the motion (docket no. 12) on an interim basis, subject to the following clarifications and conditions, with a final hearing on 4/21/20 at 1:00 p.m., and a deadline of 4/3/20 for the Debtor to file an amended motion and file and serve a notice of the final hearing.
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Service
Debtor's proof of service does not reflect service on PHH Mortgage Corporation or Specialized Loan Servicing in a manner consistent with Rule 7004 (Fed. R. Bankr. P.). Why not?
The tentative ruling is that by the date stated at the start of this tentative ruling Debtor must give notice of the continued hearing and file a proof of service reflecting service as follows (a) on PHH Mortgage at the
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address listed in its proof of claim (claim no. 2) (which was filed after the date of the motion, but which appears to be the most recent designated address) (see Rule 2002(g), Fed. R. Bankr. P.), and (b) on Specialized Loan Servicing in a manner consistent with Rule 7004(b)(3).
Deviations may not exceed 10%
Debtor checked the box requesting authority to deviate from the line item expenses in the proposed budget(s), but did not fill in the percentage of deviation requested. The tentative ruling is that debtor may not deviate from the line items listed in the motion by more than 10%.
Property taxes and insurance
The motion is inconsistent about whether debtor pays monthly property taxes and insurance into an impound account (compare dkt. 12, p. 4, para. 5 with p. 5, para. 1). The tentative ruling is to direct debtor to file an amended motion stating the estimated dollar amount for these items by the date for service of notice of the continued hearing (stated at the start of this tentative ruling).
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
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Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Grant of, and limitation on, postpetition liens
The tentative ruling is to grant postpetition liens to any creditors holding secured claims by granting replacement liens, but such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
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Dollar amount. Such liens shall be limited to the dollar
amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
fr. 3/31/20
Docket 16
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 23, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 3, 3/31/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 4/21/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 12), amended cash collateral motion (dkt. 25), notice of continued hearing (dkt. 26), interim cash collateral order (dkt. 50), no opposition is on file
Grant the motion on final basis, on the same terms as stated in the order (dkt. 50) granting the motion on an interim basis.
Utilities motion (dkt. 16), order setting hearing on shortened notice (dkt. 19, "OST"), notice of hearing (dkt. 21), proof of service (dkt. 22), notice of continued hearing (dkt. 42), interim utility order (dkt. 49), no opposition is on file
Grant the motion on a final basis.
Application to employ Anyama Law Firm (dkt. 11), notice of hearing (dkt. 37), supplemental Anyama declaration (dkt. 38), declarations of Ms. Anyama and Daisy Parada (dkt. 54), no opposition is on file
This Court has reviewed the declarations of Ms. Anyama and Ms.
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Parada (dkt. 54). The tentative ruling is to grant the application and authorize employment, effective 2/26/20, subject to Judge Bason's standard employment provisions (available at www.cacb.uscourts.gov).
Budget motion (dkt. 41), Amended Schedule J (dkt. 28) no opposition is on file
Grant on a further interim basis, subject to Debtor addressing the following issues in an amended budget and/or declaration filed by 4/28/20, with a continued hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below).
HOA fees: Amended Schedule J, paragraph 4d reflects a $79 monthly payment for "Homeowner's association or condominium dues," but the proposed budget does not include this as a line-item expense. Why not?
Car payment: Debtor's budget proposes to stop making a
$369 monthly car payment beginning April 2020, but does not explain why. Was March 2020 the final payment under a vehicle purchase agreement? Is Debtor surrendering this vehicle? If so, will Debtor be able to get to/from work? Should the budget be further amended to eliminate the need for car insurance? Why was this decrease not addressed in paragraph 24 on Schedule J which prompted Debtor to state whether she expected any decreases in her expenses within the year after the form was filed?
Amended Schedule I (dkt. 28) remains deficient
This Court's 3/31/20 tentative ruling (see below) directed Debtor to file an amended Schedule I that attaches a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income.
Debtor's Amended Schedule I still puts rental income in line 8h, rather than in line 8a, and Debtor has still not filed a separate statement as required by that form and this Court's prior ruling.
The tentative ruling is that Debtor is directed to file a further amended schedule I by 4/28/20 that cures both of these issues.
Monthly operating reports ("MORs")
As of the preparation of this tentative ruling, Debtor has not filed an MOR for March. Why not?
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Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/2/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
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Cash collateral motion (dkt. 12)
Grant the motion on an interim basis, subject to the service deadlines
and also to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 2 (3/31/20 at 1:00 p.m.), with a continued hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below).
Utilities motion (dkt. 16), order setting hearing on shortened notice (dkt. 19, "OST"), notice of hearing (dkt. 21), proof of service (dkt. 22)
The first issue that this Court will address is whether to shorten time and why notice could not have been provided sooner.
The second issue that this Court will address is whether, if notice could have been provided sooner, counsel should not charge anything for the Application and related matters.
If this Court is persauded to shorten time, then subject to any opposition at the hearing, the tentative ruling is to grant this motion on an interim basis, with a final hearing concurrent with the continued status conference (see part "(2)" below).
Application to employ Anyama Law Firm (dkt. 11)
Ms. Anyama and Debtor state that Ms. Anyama's firm received an
$8,233 pre-petition retainer payment, which was a gift from Debtor's family (dkt. 11, p.6, para. 3.a.1 & p. 8) (actually, Ms. Anyama's firm received
$10,000 including the filing fee, id., Ex.2, p.2).
The contribution from family members raises certain ethical issues because a third party who funds a retainer for a debtor (a "Funder") may have a variety of motivations for providing the funding such as, for example, being the recipient of an avoidable preference, or otherwise having interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a Funder is not outright prohibited, it is fraught with ethical concerns. At the hearing, proposed counsel should be prepared to address the following.
Connections. What are all of the connections between the Funder, on the one hand, and Debtor, Debtor's proposed counsel, and any of the other types of persons listed in FRBP 2014, on the other hand -- e.g., have there been any economic or business or personal connections between the Funder and Debtor, beyond the fact of being a family member, or
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between the Funder and proposed counsel, or any creditor or other party in interest, or their respective attorneys or accountants? These questions may be answered, if appropriate, by referring to specific disclosures already on file, e.g., the bankruptcy schedules.
Terms. The Application and Debtor's declaration assert that the funds were to be treated as a gift, but there is no evidence to support that assertion (e.g., declaration(s) from the Funder).
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and taht the sole attorney- client relationship and duty of loyalty is with Debtor, not the Funder? Who provided such advice: independent counsel, or Debtor's proposed counsel (and if the latter, was each Funder given the opportunity to obtain independent counsel)? Has the Funder given informed consent? Are these things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
Ms. Anyama seeks authority to charge $150/hour for paralegal services, but the application is not supported by a resume or any other qualifications from her paralegal to justify that hourly rate.
The tentative ruling is to set a deadline of 4/3/20 for Debtor to file supplemental declarations addressing the issues set forth above, and to continue this matter to be concurrent with the continued status conference (see part "(2)" below).
Schedules I and J are deficient
Debtor's status report (dkt. 15, p. 5, para.1) states that she intends to assume a residential lease of her rental property, but Debtor's Schedule I (line 8a and passim) does not reflect any rental income or attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income. Additionally, Debtor's Schedule
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J does not reflect the first and second mortgage payments for the rental property or any other expenses such as real property taxes, insurance, and maintenance.
The tentative ruling is that Debtor is directed to file amended schedules by 4/3/20.
Budget motion
Debtor's status report (dkt. 15) states that she "will file a budget motion on or before" [presumably the status conference]. As of the preparation of this tentative ruling, no budget motion is on file. Judge Bason's posted procedures (available at www.cacb.uscourts.gov) Section VII.G provide that budget motions are mandatory in all chapter 11 cases. The tentative ruling is to set a deadline of 4/3/20 to file and serve a budget motion with a hearing set on shortened time to be concurrent with the continued status conference (see part "(2)" below), oppositions due 4/14/20, and replies at the hearing.
Service of order setting principal status conference
This Court's order setting principal status conference (dkt. 5, "Procedures Order") required Debtor to serve this order on all parties in interest by 2/29/20 and file a proof of service at least 14 days before the principal status confernce. On 3/18/20 debtor's counsel belatedly filed a declaration (dkt. 18) stating that she served the order, but does not state when service occurred or why she could not file her declaration by the 3/17/20 filing deadline. Was the procedures order timely served? The tentative ruling is to set a deadline of 4/3/20 for Debtor to file an amended proof of service.
Monthly operating reports ("MORs")
As of the preparation of this tentative ruling, Debtor's February MOR was overdue. When will the MOR be filed? The tentative ruling is to set a deadline of 4/3/20 to do so.
Should this case remain in chapter 11?
Debtor's status report (dkt. 15) states that she filed this case to address pre-petition arrears on a rental property. Debtor should be prepared to address why this case was filed as a chapter 11 case rather than a chapter 13 case.
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Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 5 (see section 1(f), above)
Plan/Disclosure Statement*: file by 6/24/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/21/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
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Docket 573
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 28, 4/21/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
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fr. 1/28/20, 03/31/20
Docket 475
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 28, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
TCF EQUIPMENT FINANCE, a Represented By
Raffi Khatchadourian Christopher D Crowell
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Payment to Debtor fr. 1/28/20, 03/31/20
Docket 486
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 28, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 33, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 21, 1/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
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Docket 532
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 28, 4/21/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20
Docket 1
Tentative Ruling for 4/21/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion For Order Approving Settlement Agreement Between Debtor And TCF National Bank (the "Settlement Motion," dkt. 573)
The tentative ruling is to grant the Settlement Motion.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
TCF Equipment Finance, Inc.'s Motion For Allowance And Payment Of Administrative Expense Claim (dkt. 475) and Debtor's Amended Motion For Order Authorizing Surcharge Of Collateral (dkt. 486)
The tentative ruling is to continue both motions to the same date and time as the continued status conference, to ensure that an order approving the parties' Settlement Motion is lodged and entered, with the understanding that the motions will come off calendar if the order on the Settlement Motion
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is issued prior to the continued hearing.
Debtor's Second Amended Plan (the "Plan," dkt. 562), Second Amended Disclosure Statement (the "Disclosure Statement," dkt. 563), first Supplement (the "1st Supplement," dkt. 578), Cathay Bank's Response to the Plan (the "Cathay Response," dkt. 581), Objections Of The City Of Monrovia ("City") to the Plan (dkt. 583), second Supplement (the "2d Supplement," dkt. 596), Debtor's reply (dkt. 598, 599, 601), City's response to 2d Supplement (dkt.602), City's response to Debtor's reply (dkt.603)
The tentative ruling is to accept City's latest reponses in view of the fact that the 2d Supplement was only recently filed. In addition, the tentative ruling is (x) to sustain City's objections in part and overrule them in part, and
continue this confirmation hearing to the same date as the continued status conference, for the reasons set forth below.
The tentative ruling is that City has not established that Debtor is holding its alleged funds in trust
City argues that the Plan should not be confirmed because Debtor holds approximately $400,000 in trust for City (the "City Funds"), based on the parties' contractual agreement for advanced life support services, but the Plan treats those funds as part of the estate and City's claim as an unsecured claim. Dkt. 583, pp.2-5. Debtor's reply argues that the language from the parties' agreement is insufficient to create an express trust under California law (dkt. 598, p.1:9-14), that there was no meeting on minds or performance consistent with any such trust (id. at p.2:3-28), and that City is barred by waiver or laches. Id. at pp.4:17-7:8. The tentative ruling is not to reach those issues because the following issue is dispositive of this particular objection.
Debtor provides evidence that City's alleged funds were commingled with the funds that were collected for other localities and therefore, debtor argues, even if the parties' intent was to create a trust fund, City has not met its burden of establishing any actual trust fund, including any tracing of the funds at issue. Dkt.598, pp.3:3-4:14. City has not presented any contrary evidence, or any authority establishing that it can assert a trust absent segregated funds. The tentative ruling is that Debtor is correct.
In sum, the City has not established any actual trust fund that would let it come ahead of other creditors, and be paid 100% of what it is owed while other creditors, whose own situations are also empathetic, receive little or nothing. Therefore the tentative ruling is to overrule this objection to
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confirmation.
The tentative ruling is that more notice and possible re- balloting and/or amendment of proposed releases and other terms are required
City's objection argues that the Plan should not be confirmed because it has not been proposed in good faith as required by Section 1129(a)(3).
Dkt. 583, p.5:20-23. City puts forth various arguments for why "Debtor's bad faith is evident," but one of those arguments essentially repeats the "trust fund" issue addressed above so it will not be separately addressed. For the same reasons, City argues that cerain releases should not apply, either generally or as against City. See dkt. 583, p.5:14-15.
The Plan is incomplete
City argues that as of the deadline for objecting to the Plan it was incomplete. Dkt. 583, p.5:24. That is accurate. Section 4.1 of the Plan provides for the establishment of a Creditor Trust to administer Debtor's assets, but the Plan does not include a copy of the Creditor Trust Agreement. See dkt. 562, p.18, para. 4.1; dkt. 562, p.24, Ex. 1; dkt. 583 p.6:2-9.
The tentative ruling is that, now that the 2d Supplement has been filed (on 4/14/20, dkt.596) and now that this Court can assess its provisions, those provisions require additional disclosure - a supplement to the Disclosure Statement. In addition, the tentative ruling is that the terms of the 2d Supplement require re-balloting, an opportunity to object, and/or withdrawal of those provisions.
Leslie McNeal as trustee of the Creditor Trust
City argues that the Plan has been proposed in bad faith because it entrusts the Creditor Trust to Leslie McNeal, an insider of the Debtor who previously failed to fulfill fiduciary trust obligations. Dkt. 583, p.5:24-27; p.6:20-26. Debtor responds Leslie McNeal is Debtor's officer and principal with the most experience and knowledge about Debtor's billing and collections, and so it is necessary and appropriate that Leslie McNeal serve as trustee for the Creditor Trust. Dkt. 598, p.8:3-7.
The tentative ruling is that making Leslie McNeal trustee, with little or no opportunity for oversight or removal by creditor/beneficiaries, is not sufficiently justified. Accordingly, absent more control by creditor/beneficiaries, the tentative ruling is to sustain the objection. But the tentative ruling is to provide an opportunity for Debtor to amend the trust
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agreement to address this issue.
Treatment of the Schaefer Trust
City argues that the Plan unfairly advantages the Schaefer Trust loans over other claims. Dkt. 583, pp.5:28-6:1; p.7:2-14. City argues that given that Debtor obtained the secured loans from the Schaefer Trust weeks before filing the bankruptcy petition, and now Debtor proposes to pay the Schaefer Trust ahead of City, this Court should at a minimum disregard acceptance of the Plan by the Schaefer Trust, or subordinate or recharacterize the secured claims to Class 4 unsecured creditors. Dkt. 583, p.7:2-22. Debtor's reply argues that the treatment of the Schaefer Trust is fair in light of the considerable funds loaned to Debtor, and the concessions the Schaefer Trust made to allow Debtor to propose a feasible plan. Dkt. 598, pp.6:10-p.7:23.
The tentative ruling is that City's objection is not persuasive on the issue of paying the Schaefer Trust ahead of City. As described above, as City has not established that Debtor was holding any of its funds in trust, and City has not established that is entitled to treatment other than as an unsecured creditor. Therefore it is reasonable, and in fact required by the Bankruptcy Code, that Debtor to propose to pay a secured claim ahead of City's unsecured claim.
But, to the extent that City is arguing that the broad releases provided to the Schaefer Trust are inappropriate, this Court requires more information as set forth below.
Broad releases
As pointed out in City's objection, the Plan provides for broad releases. Dkt. 583, p.4:23. In its reply, Debtor argues that the releases provided to the Schaefer Trust were "an important factor and consideration for its agreement to subordinate its claims" and to "provide any funds necessary to ensure payment in full to administrative and priority claimants." Dkt. 598, p.7:17-22.
Section 8.2(a)(ii) of the Plan provides in relevant part
... all parties in interest in this Chapter 11 Case shall be deemed to have released all of the Released Claims against the following Entities: the Debtor, the Creditor Trust and the Professionals, and against each and every one of their present and former directors, officers, employees, professionals, agents, equity holders, shareholders, members, trustees, beneficiaries, representatives, attorneys, advisors, successors and assigns. [Dkt. 562, p.26:3-8 (emphasis added)]
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Section 1.65 of the Plan defines "Released Claims" as follows Released Claims means, except as otherwise provided herein, all Claims, debts, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, promises,
damages, claims and liabilities whatsoever, known or unknown, associated with the Debtor, the Estate, or the Chapter 11 Case, existing on the Confirmation Date or which thereafter could arise based on any act, fact, transaction, cause, matter, or thing that occurred prior to the Confirmation Date, with the exception of the following ... (iii) Claims arising from the fraud, willful misconduct, or gross negligence of any Person ... [Dkt. 562, p.8:15-23 (emphasis added)]
Section 8.2(a)(i) of the Plan largely mirrors the release language from Section 8.2(a)(ii) quoted above, but instead it is the Debtor and the Estate who are deemed to release all Released Claims with some exceptions. See dkt. 562, p.25:25-28. While the releases provided in Section 8.2(a)(i) might be permissible, Section 8.2(a)(ii) appears to provide for third party releases which is not permissible under Ninth Circuit case law. See In re Lowenschuss, 67 F.3d 1394, 1401-02 (9th Cir. 1995) ("This court has repeatedly held, without exception, that [Section] 524(e) precludes bankruptcy courts from discharging the liabilities of non-debtors. … In American Hardwoods, 885 F.2d at 625-26, we explicitly rejected the argument … that the general equitable powers bestowed upon the bankruptcy court by 11
U.S.C. [Section] 105(a) permit the bankruptcy court to discharge the liabilities of non-debtors."); see also Deocampo v. Potts, 836 F.3d 1134, 1143 (9th Cir. 2016) (reiterating Lowenschuss principles).
In addition, even for those releases that would be permissible under Ninth Circuit law - e.g., releases by Debtor and the bankruptcy estate - the tentative ruling is that Debtor must support its proposed releases just as it would for any other settlement. In other words, Debtor must show that the usual factors support granting the releases. See In re A&C Prop's, 784 F.2d 1377, 1381 (9th Cir. 1986).
The tentative ruling is to sustain City's objection insofar as denying confirmation if the proposed releases are included. But the tentative ruling is to provide Debtor with an opportunity to craft more limited release language.
Conclusion
The tentative ruling is that for the reasons set forth above, Debtor's
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plan cannot be confirmed today, and this confirmation hearing should be continued to the same date and time as the continued status conference. The tentative ruling is that Debtor must file and serve on all creditors appropriate briefs and/or declarations including revised language of the Plan and trust documents by no later than two weeks prior to that hearing, with any response by City or any other party in interest due no later than one week prior to that hearing.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement (dkt. 562, 563)*: See above.
Continued status conference: 5/19/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
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Docket 65
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 31, 4/21/20 at 1:00p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Tentative Ruling for 1/14/20:
Please see the tentative ruling in the status conference (cal. no. 4, 1/14/20 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling in the status conference (cal. no. 19, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/29/19:
Please see the tentative ruling in the status conference (cal. no. 10, 10/29/19 at 1:00 p.m.).
Tentative Ruling for 10/15/19:
Please see the tentative ruling in the status conference (cal. no. 3, 10/15/19 at 1:00 p.m.).
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Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
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debtor in possession on insurance claims related to damage to her Bel Air Rd property
fr. 4/7/20
Docket 167
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar No. 31, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 1
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
The tentative ruling is to appoint a chapter 11 trustee based on the long history of this case without progress and with many mis-steps by Debtor (as set forth in this tentative ruling and the extensive prior tentative rulings reproduced below). In addition, the UST should be prepared to address whether Debtor's March MOR (dkt. 208) sufficiently addresses the issues previously identified.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. At the last hearing, this Court ordered Debtor to file a declaration(s) with an update on the projected repair costs
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and a statement of disinterestedness. As of the preparation of this tentative ruling, Debtor has not complied. Why not?
Motion to approve settlement with Wilmington Savings Fund ("Wilmington")
At the last hearing, this Court orally shortened time for Debtor to file a motion to approve a settlement with Wilmington that would resolve the parties' default interest, late fees, and other charges dispute, but set a deadline of 4/14/20 for Debtor to file and serve the motion. On 4/13/20, Debtor filed an ex parte application requesting modification of the filing and service deadlines (dkt. 203), which this Court treated as an application for hearing on shortened time and granted the application (dkt. 204). As of the preparation of this tentative ruling, no motion is on file.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/19/20 at 1:00 p.m., concurrent with other matters. Brief status report due 5/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission.
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Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
There is no tentative ruling. The parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on:
the UST's MTD and related papers,
Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174),
Debtor's apparent history of mis-starts and poor management of this estate, including a long history of missed projections about how this case would progress, an abandoned attempt to retain a professional to rent out property as an Air-bnb, the belated and unsuccessful attempts to explore a sale or refinancing of the Bel Air property, and transfers of funds without adequate explanation (as referenced in this Court's prior tentative rulings for 10/29/29, 10/15/19, and 9/24/19, reproduced below).
Inadequate attempts to stop the running of default interest
An additional concern, which may bear on the MTD, is whether Debtor has made adequate attempts to stop the running of postpetition default interest payable to Patch of Land Lending, LLC ("Patch"). The tentative ruling is that she has not.
From the inception of this bankruptcy case this Court has raised concerns that default interest, late fees, and other charges are consuming any equity in the Bel Air property at a rapid rate. On 8/13/19 this Court issued an order conditionally continuing the automatic stay under 11 U.S.C. 362(c)
(3) and setting a deadline of 11/12/19 for Debtor to "file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at stopping the running of postpetition default interest owed to Patch [of Land Lending]." Dkt. 31, Ex.1, p.1, item "(ii)" (emphasis added). Debtor filed a motion challenging the
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validity of Patch's assertion that it is entitled to default interest and late fees under 11 U.S.C. 506(b) (the "Default Interest Motion," dkt. 123). That is insufficient, for two reasons.
First, it is not enough to file the Default Interest Motion without prosecuting it. The hearing on that motion has been continued several times (dkt. 129, 133, 141) with the current hearing set to be heard 5/5/20 at 1:00
p.m. (dkt. 164).
Second, the Default Interest Motion has the effect of gambling that Debtor will prevail in her attempt to establish that no default interest is owed - an uphill battle that might well fail - rather than stopping the running of whatever interest turns out to be owed. See, e.g., East West Bank v.
Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019) (allowing default interest). This distinction is further explained below.
As a preliminary matter, it is helpful to recognize the different periods in which default interest may accrue:
Three categories of interest exist in bankruptcy cases: (1) interest accrued prior to the filing of the bankruptcy petition (prepetition interest); (2) interest accrued after the filing of a petition but prior to the effective date of a reorganization plan (pendency interest); and (3) interest to accrue under the terms of a reorganization plan (plan interest). ...
Generally, the Code does not provide for pendency interest to creditors, because the filing of the petition usually stops interest from accruing. Section 506(b), however, provides an exception for oversecured creditors:
To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees, costs, or charges provided for under the agreement or State statute under which such claim arose. [11 U.S.C. 506(b) (emphasis added).]
Thus, an oversecured creditor can recover pendency interest as part of its allowed claim, at least to the extent it is oversecured.
Any accumulated pendency interest determined under § 506(b) is added to the allowed claim of an oversecured creditor and then
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paid pursuant to the terms of the confirmed plan with plan interest determined under § 1129(b)(2)(A)(i)(II). [In re Beltway One Dev.
Group, LLC, 547 B.R. 819, 826 (9th Cir. BAP 2016) (emphasis added, citations omitted).]
There are only three ways that occur to this Court to stop the running
of pendency default interest.
A sale under section 363
Debtor could sell the Bel Air property under 11 U.S.C. 363. That is only a partial remedy because it does not stop the running of pendency default interest before the proceeds are distributed. GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008). But at least from that point forward it would stop the ongoing accrual of pendency default interest.
Unfortunately, a section 363 sale appears to be precluded because Debtor reports that any sale of the Bel Air property would result in capital gains taxes estimated at roughly $1 million. Dkt.159, p.17:1-4. In other words, the cure might be worse than the disease.
Refinancing the debt
Debtor attempted to refinance Patch's debt, but not fully. Patch objected, and this Court denied Debtor's refinancing motion. Debtor has not presented any alternative refinancing proposal. So this alternative appears to be unavailable.
Plan confirmation
The last way known to this Court to stop the running of pendency default interest is to confirm a plan that restructures the debt to Patch and reduces the interest rate. As with the other alternatives, this is only a partial remedy because it does not stop the running of pendency interest before the effective date of the plan. But at least it stops the accrual of default interest going forward.
An added benefit of confirming a plan used to be available under some decisions in the Ninth Circuit: retroactively eliminating all pendency default interest. See Beltway One, 547 B.R. 819, 826-28 (discussing In re Entz- White Lumber & Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), and subsequent lower court decisions). But more recent guidance from the Court of Appeals has been interpreted to mean that pendency interest is not eliminated unless the claim is left unimpaired - i.e., unless all defaults in un-matured long-term debt are cured, or matured debt is paid in full on the effective date. See Beltway One, 547 B.R. 819, 826-28 (interpreting Future Media, 547 F.3d
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956).
This Court expresses no opinion on these issues except to note that
they exist. The point is that, at the very least, it appears that confirmation of a plan would provide a partial remedy because it would stop the ongoing running of pendency default interest, and replace it with plan interest going forward.
Conclusion as to default interest
Why has Debtor not attempted to move forward with a plan of reorganization to address the default interest?
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. Debtor should be prepared to provide this Court with an update on the 4/1/20 AIG inspection (dkt. 192, Bordon decl., para. 7) and AIG's response, if any, to the adjusted insurance claim of
$454,717.11 (id., para.6). Wilmington should be prepared to address under what conditions it would support employment of ClaimsXP (or any other adjuster).
If this Court is persuaded to grant the Application and authorize some form of employment of ClaimsXP retroactively to 1/7/20, employment will be subject to Judge Bason's standard employment terms (avaiable at www.cacb.uscourts.gov). Additionally, any employment will be subject to the filing of a satisfactory statement of disinterestedness as required by the posted Procedures of Judge Bason (id.) by 4/10/20.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right to object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Motion to allow Claim 31 filed by Deanna D’Egidio ("Claimant") (dkt.
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152), debtor’s motion to extend opposition deadline (dkt. 186) and order thereon (dkt. 189), debtor's opposition (dkt. 187), claimant’s reply (dkt. 193)
The tentative ruling is to grant the motion on the terms set forth in Debtor’s opposition (dkt. 187) and Claimant’s reply (dkt. 193): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of
$44,500.00.
Proposed orders: Movants are directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/5/20 at 1:00 p.m., concurrent with other matters. Brief status report due 4/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
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until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
Continue to the same date and time as the continued status conference (see below), with a deadline of 4/6/20 at noon for Debtor to file amended bankruptcy schedules I & J, including all continuation sheets for line
8.a of schedule I.
At the continued status conference, the parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on the UST's MTD and any argument at the hearing, based on the matters addressed in the MTD and supplement, Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174), Debtor's hiring of a claims adjuster on or about 1/7/20 (dkt.
167, p.3, para. 11) without authorization of this Court, and Debtor's apparent arrangement for the claims adjuster to hire counsel to represent the bankruptcy estate without authorization of this Court.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
Continue to the same date and time as the continued status conference (see below). The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right ot object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
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Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 1:00 p.m., concurrent with other matters. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
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Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77, 80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following
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issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
Termination of prior real estate agent
Debtor reports (dkt. 69, para.3) that the previously authorized real estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
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Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent [that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties") that may be part of a real estate transaction for the sale of the Real Property [i.e., dual agency? that is prohibited by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
What does the quoted text mean? This Court's questions are set forth in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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the time for debtor to file a motion to compromise as represented to the court and related dates, or alternatively, 2) To briefly continue the scheduled hearing to allow for debtor a few additional days to file the motion to compromise in order to give the parties additional time to complete the procedural matters needed
to finalize an agreement and the related rule 9019 motion with joinder by secured creditor Wilmington Savings Society
Fund, FSB not in its individual capacity but soley in its capacity as trustee
Docket 203
Please see the tentative ruling for the status conference (Calendar no. 31, 4/21/20 at 1:00p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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Docket 109
Please see the tentative ruling for the status conference (calendar no. 34, 4/21/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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Docket 1
Tentative Ruling for 4/21/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Motion In Individual Case For Order Authorizing Debtor In Possession To Employ Profession (Other Than General Bankruptcy Counsel) (the "Appraiser Employment Motion," dkt. 109)
Debtor should be prepared to address the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 113).
Other issues
This Court's concerns raised prior to and at the hearing on 3/31/20 continue to be seriously troubling, but those issues will be addressed at future hearings.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
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Continued status conference: 5/5/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Despite repeated inquiries from this Court, the docket does not appear to reflect adequate prosecution of this case. To the contrary, the docket and records of this Court appear to reflect considerable mismanagement, lack of disclosure, and other problems set forth below.
Rental income, and disposition or use of various properties
At the hearing on 2/18/20 Debtor belatedly clarified that the second cash collateral motion (dkt.55) was meant to amend the first such motion, and that only one property currently is generating rents - the 69th Way property - although perhaps a second property generates some rents that are not anyone's cash collateral (as noted below). As for Debtor's properties other
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than 69th Way, Debtor apparently intends to sell the Shadow Ln. property (dkt.89), and it is unclear what Debtor intends to do with the 68th Way property, the Anderson St. property, and the 132d St. property, which appear to be generating minimal if any rental income. See, e.g., Status Report (dkt.69) (listing properties, but not addressing Debtor's intent regarding any of them).
The latest MOR (#4, for Feb. 2020) is unclear about which rental account relates to which property. But it appears that, apart from 69th Way, only one other property has an ending balance above $0, and that is minimal (this unspecified property is the other one that appears to generate some rent, that apparently is not anyone's cash collateral, although that is unclear). See dkt.85, p.18.
In addition, it appears that Debtor's actual rent rolls might differ from what has been disclosed to date. See dkt.86, p.5:11-15, and supporting decl.
With this background, this Court's primary concern is why the docket does not reflect steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties (other than Shadow Ln.)? This Court's secondary concern is to obtain much more complete and clear information and explanations regarding Debtor's various properties.
Debtor's lack of disclosure to date only encourages this Court to impose more comprehensive disclosure requirements, or possibly other remedies. If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) the tentative ruling is to set a deadline of 4/7/20 for Debtor to file and serve on Aztec and the United States Trustee ("UST") a declaration specifying:
exactly what is the current condition of each property;
how much each apartment or room in that property (a "Unit") has been rented for at all prepetition times back to 1/1/17;
how much each Unit has been rented for at all postpetition times, and whether each Unit has been used or occupied by any relative or other affiliate of Debtor at any times postpetition;
Debtor's projections for each Unit, including the timing and dollar amount of all future rents;
Debtor's proposed disposition of each property;
all steps that Debtor has taken since the commencement of this case to accomplish that disposition; and
the projected timeline for such disposition.
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Debtor's amended cash collateral motion (dkt. 55), opposition of Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") (dkt. 70, 86 & 88), and Debtor's reply (dkt. 90)
Aztec values the property at $860,000 "as is" as of 2/23/20. Dkt. 88, p.2:2-3, dkt.91. Debtor requests time to obtain a competing appraisal. Dkt. 90, p.2:13. Why did Debtor not do this already?
If there is a satisfactory answer, and if Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to grant the cash collateral motion on a further interim basis, on the same terms as this Court's previous interim order (dkt. 80), and to set a continued hearing for the same date and time as the continued status conference as set forth below with a deadline of 4/25/20 for Debtor's appraisal to be filed and served on Aztec.
At the continued hearing the parties should address how they propose to resolve their dispute regarding the value of the property - e.g., (i) with an evidentiary hearing; (ii) with a ruling of this Court based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as this Court's own expert under FRE 706.
February MOR (dkt. 85)
Insurance
This MOR (dkt. 85, p.17) shows general liability insurance is due to expire/only paid through 1/25/20. Has that insurance been extended?
This is the same problem that occurred and has been pointed out before. Why is this problem continuing?
This Court fully understands that the insurance is month-to-month, according to Debtor's counsel. But that is no excuse. By the due date of each MOR is should be apparent whether the insurance has or has not been continued, so why do the MORs continue to suggest - apparently inaccurately - that the insurance has expired? Alternatively, if the insurance really has expired, what consequence should follow?
Even if Debtor is (barely) current on insurance, this Court questions whether there is a danger every month that the insurance will expire, if the insurance is only month-to-month. How is Aztec, the bankruptcy estate, or the public adequately protected?
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If Debtor remains a debtor in possession (see part "(1)(e)" of this
tentative ruling, below), the tentative ruling is to set a deadline of 4/7/20 for Debtor to file, and serve on Aztec and the UST, a declaration fully addressing the foregoing insurance issues.
No blocked account
Aztec's supplemental opposition (dkt. 86, p.9:1-9) states that Debtor's MOR appears to reflect that there is no separate blocked account for Aztec's cash collateral, as was required by this Court's interim order (see dkt. 80, p.3). The rental DIP account ending in 2707 appears to be related to Aztec's property based on the $5,390.00 of receipts for February (dkt. 85, p.5), and Debtor's representation at the last hearing that the 69th Way property is the only property generating rents at this time. Debtor's reply states that he has complied with this Court's order "by setting aside one of debtor in possession accounts as an escrow account for the remaining portion of the rents." Dkt. 90, 4:1-2.
One problem, as noted above, is that it is not clear which account Debtor is referring to (the one ending in 2707?). Another problem is that the MOR appears to show rental income going into that account but does not appear to show payments of "real estate taxes," "utilities," and "essential repairs" out of that account (only insurance appears to have been paid out of that account). See dkt.85, p.6. It appears that utilities, for example, have been paid from the general account. See dkt.85, pp.1-3. This creates a falsely inflated balance in that account.
More importantly, Debtor appears to misunderstand the nature of a "blocked account." In common usage, and as used by this Court, it means an account from which funds cannot be released without either (i) consent of the other party asserting an interest in the account (Aztec) or (ii) an order of this Court. See, e.g., In re Estrada, 224 B.R. 132, 134 (Bankr. S.D. Cal. 1988) (referring to a "blocked account, requiring both the [chapter 7] trustee's and the Debtor's signature for any disbursements").
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) then, no later than 4/7/20, Debtor is directed to accomplish all of the following:
coordinate with Aztec and Debtor's bank to determine the mechanics of how checks will be signed by both Debtor and Aztec so as to pay utilities etc. (or whether automatic payments will be set up);
actually set up the blocked account and implement
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those procedures; and
file and serve on Aztec and the UST a declaration confirming that the blocked account has been established and those procedures have been implemented.
Belated application to employ special counsel (dkt. 57, filed 1/17/20), who has not been approved but has already filed an adversary proceeding (Lora v. Rehabbers Fin., Inc. dba Aztec Fin., et al., Adv. No. 2:20- ap-01067-NB)
The bankruptcy petition was filed on 11/11/19. Over two months later, on 1/17/20, Debtor belatedly filed an application to employ special counsel.
That proposed special counsel apparently represented Debtor in prepetition litigation in State Court (LA Superior Court, Case No.
19LBCV00600, for fraud, quiet title, etc.). Dkt.57, p.5. There is no meaningful description of that litigation in the application, nor does the application say anything about commencing a separate adversary proceeding in this bankruptcy case, as the (still unauthorized) special counsel has done on 3/20/20 (dkt.87).
As set forth in prior tentative rulings, reproduced below (for 2/18/20, item "(1)(c)," and 1/14/20, item "(1)(c)"), this Court is very concerned that Debtor is gambling any possible recovery for creditors on the possibility of prevailing in litigation against Aztec. That litigation should have been fully described in Debtor's initial status report and any later reports (dkt. 30, 69), and also should have been fully described in the (very belated) application to employ proposed special counsel (dkt.57). Instead, the nature of that litigation has only been incompletely and belatedly disclosed in those documents (see, e.g., dkt.30 at PDF p.3, and dkt.57, p.5), and orally at prior status conferences.
As near as this Court can tell, based on those sources and this Court's review of the Complaint (Adv. dkt. 1), Debtor's claims are as follows. Debtor apparently is attempting to reduce or eliminate the principal and/or interest, including default interest, on Aztec's secured claim collateralized by the 69th Way and Shadow Ln. properties. Although Debtor admits receiving the loan proceeds, and using some or all of the proceeds to purchase the Shadow Ln property, Debtor allegedly attempted to cancel both the purchase and the loan on or about 6/8/18. Id., para.16 & Ex.C at PDF pp.4 & 107-08. But then on or about 6/11/18 Debtor and his wife allegedly were pressured and
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intimidated into executing various documents that they did not understand that reauthorized the transaction, including cross-collateralization (id., para.17), and their signatures allegedly were forged on a closing statement listing various high transaction costs (id., para.18, 26). Debtor's Complaint appears to assert claims for fraud, usury, a determination that some or all of these transactions are void and unenforceable, and damages of an unspecified nature up to or in excess of $1 million. It is unclear how much this adversary proceeding duplicates or is different from the State Court litigation.
This Court expresses no view on the merits of these two actions (in State Court, and in the adversary proceeding in this Bankruptcy Court). The point is only that pursuing such litigation is all very well for this bankruptcy estate if Debtor prevails, but Debtor has a duty, as a debtor in possession acting as a trustee for the benefit of creditors (11 U.S.C. 1101(1), 1106, 1107), to consider a cost/benefit analysis of the litigation, and how to minimize the "down side" risk if Debtor does not prevail.
As this Court has noted previously, the default rate of interest (and even the non-default rate) are large enough that they may eat up any assets of this estate if they continue to accrue and are not disallowed. This Court previously has questioned why Debtor has not been pursuing avenues that might possibly stop the accrual of such interest.
Such avenues conceivably could include such tactics as:
selling the 69th Way and/or Shadow Ln. properties free and clear of liens with Aztec's liens to attach to the proceeds of sale (11 U.S.C. 363(b)&(f));
selling those properties with the net proceeds being paid over to Aztec subject to claims to recover those proceeds;
pursuing confirmation of a chapter 11 plan that pays Aztec over time with a new (much reduced) interest rate; or
some other tactic.
To be clear, this Court expresses no view whether those things actually would work to stop the running of default interest - this Court is not pre- judging any legal or factual issues. The point is only that only last week, on 3/23/20, did Debtor finally appear to take some preliminary steps to possibly addressing this issue, by filing an application (dkt.89) to employ a real estate broker to sell the Shadow Ln. property. Now, with the possible effects of the COVID-19 pandemic on the real estate market, it appears that this is too little,
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too late.
Meanwhile, Debtor does not appear to have taken any steps to obtain approval for the employment of special counsel, such as setting the matter for hearing or lodging a proposed order. It is also unclear what, if anything, is happening in the pending State Court litigation - is Debtor taking whatever steps are necessary to preserve whatever value that litigation has for the estate?
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this part "(1)(d)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Whether this case should be converted or dismissed, or whether a trustee should be appointed, or other relief
Based on the matters described above, and the history of this case as described in the prior tentative rulings reproduced below, this Court questions:
whether Debtor is grossly mismanaging this bankruptcy estate (sub-paragraph "(B)" of 11 U.S.C. 1104(a)(1), 1112(b)(4)) by:
not taking appropriate steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties;
not adequately disclosing the past, present, and projected condition, rents, and proposed disposition of those properties;
not maintaining and/or timely disclosing adequate
insurance;
not maintaining a blocked account for cash collateral
as order by this Court;
not seeking authorization for the employment of special counsel to prosecute litigation against secured creditor Aztec until over two months after the commencement of this case;
not requesting adequate authorization for that proposed special counsel: the application seeks authorization for him to prosecute the State Court litigation against Aztec, but not any litigation in this
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Bankruptcy Court with Aztec;
failing to monitor and coordinate with such special counsel, as illustrated by (x) such proposed counsel's filing of an adversary proceeding against Aztec on behalf of this bankruptcy estate before such special counsel is authorized to represent this estate, and (y) the apparent lack of attention to the State Court litigation against Aztec; and
perhaps most importantly, not taking any steps to stop the running of the high rates of Aztec's claimed interest, despite repeated questioning by this Court why no such steps have been taken, until the application to employ a real estate broker on 3/23/20, which appears to be too little, too late;
whether Debtor is failing to maintain appropriate insurance that posses a risk to the state or to the public (sub-paragraph "(C)" of section 1112(b)(4));
whether Debtor has engaged in the unauthorized use of cash collateral substantially harmful to Aztec, or has failed to comply with this Court's order regarding the use of cash collateral and establishment of a blocked account (id., sub-paragraphs "(D)" and "(E)");
whether Debtor is failing, without excuse, to satisfy timely the filing or reporting requirements established by the Bankruptcy Code and Rules or reasonably requested by the United States Trustee regarding the filing of MORs and maintenance of insurance (id., sub-paragraphs "(F)" & "(H)"); or
whether there is other "cause" for conversion, dismissal, or appointment of a chapter 11 trustee (11 U.S.C. 1104(a), 1112(b)(1)), or any other remedy for the foregoing deficiencies.
Debtor is directed to address these issues at this status conference.
See Procedures Order (dkt.8, 29) (notice and order that this Court may consider case-dispositve matters at any status conference).
If this Court is persuaded not to convert or dismiss this case or impose other remedies at this hearing, the tentative ruling is to issue an oral Order to Show Cause ("OSC") why this case should not be converted or dismissed, or why a trustee should not be appointed, or other remedies imposed, and set that OSC for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this
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part "(1)(e)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 5/5/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
First cash collateral motion (dkt.31&32) and second cash collateral motion (dkt. 55&56)
Applicable motion(s)?
At the 1/14/20 hearing, Debtor was directed to re-serve the first cash collateral motion no later than 1/16/20 (see also Tentative Ruling for 1/14/20, reproduced below). Instead, Debtor filed and served the second cash collateral motion, which differs materially from the first cash collateral motion.
It appears that Debtor still may be seeking authorization under the first
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motion as to two properties (68th Way and Shadow Ln) and authorization under the second motion as to a third property (69th Way). Is that accurate? If not, what is Debtor attempting to do?
Service issues
At the 1/14/20 hearing, this Court noted that the first cash collateral motion was not served in compliance with Rule 7004 (Fed. R. Bankr. P.), and Debtor was directed to reserve that motion no later than 1/16/20. Debtor served the second cash collateral motion instead, and did so on 1/17/20. Dkt. 56.
It appears that Debtor has still not complied with Rule 7004. First, Nationstar Mortgage, LLC dba Mr. Cooper was not served at the address listed on POC No. 4 for notices. Second, CitiMortgage, Inc. filed POC No. 5 alleging a security interest in the 68th Way property, and it was not served with either cash collateral motion.
Allegedly fraudulent liens
As noted in Debtor's status report, Debtor is (belatedly) seeking authorization for the postpetition employment of special counsel to pursue an action in state court for fraud and quiet title with respect to allegedly fraudulent liens encumbering the 69th Way and Shadow Lane properties.
Dkt. 57 & 69, p.3:2-4. Debtor has stated an intention to sell the Shadow Lane property but not the 69th Way property. What cost/benefit analysis have Debtor and Debtor's bankruptcy counsel done regarding this litigation?
The holder of the alleged liens appears to be asserting 21% default interest (and a non-default rate of just under 10%) (see dkt.70, p.5:1-6). Of course, all rights are preserved to argue regarding interest rates, but Debtor appears to be gambling on winning the litigation and avoiding the liens and the default interest entirely. In other words, if Debtor is not 100% successful, there appears to be a substantial danger of wiping out any recovery for other creditors and Debtor. Why is Debtor not proposing a course of action that might stop the running of such high rates of interest?
For example, solely for purposes of this tentative ruling this Court presumes (without deciding) that selling the 69th Way property free and clear of the disputed liens, with such liens to attach the proceeds, might stop the running of such interest rates. Alternatively, Debtor might propose a chapter 11 plan that could include alternative treatments of this claim depending on whether the ligitation were or were not successful, and restructuring any secured claims to have a lower interest rate. These are only hypotheticals:
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again, all rights are preserved to argue whether any such possible solutions would or would not stop the running of these high interest rates, but the point is that Debtor is directed to address why the status report and the docket do not appear to reflect any exploration of methods to avoid what appear to be the large risks of staking everything on Debtor's litigation.
Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") opposition to second cash collateral motion (dkt. 70)
Aztec's opposition notes that Debtor's second cash collateral motion proposes to pay Aztec $2,000/month of the $5,465/month generated by the property, and allocates $1,058.20 to taxes, insurance, and maintenance, but Debtor does not explain what the remaining $2,379.80/month will be used for. Dkt. 70, p.4:24-27. Aztec also disputes Debtor's valuation of the property, and states that Debtor should at least be making the non-default, pre-maturity contractual payment of $4,535.67/month. Id. at p.5:17-28. While the second cash collateral motion states that Debtor's basis for the valuation of the property is Debtor's declaration, Debtor's declaration does not address the value of the property. Dkt. 55, p.11. Lastly, Aztec states that it has requested access to the property to arrange its own appraisal. Id. at
p.5:21-23.
Tentative ruling on both cash collateral motions
The tentative ruling is to order Debtor to segregate 100% of any rents and profits from each rental property (the 69th Way, Shadow Lane, and 68th Way properties), and hold all such funds - after payment of real estate taxes, insurance, utilities, and essential repairs - in separate blocked accounts until further order of this Court, so as to provide an interim form of adequate protection to Aztec and to other lienholders. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to serve all lienholders with notice of a continued hearing on the cash collateral motions, concurrent with the continued status conference set forth below. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to provide Aztec and all other lienholders with access to the properties for any inspection/appraisal they wish to conduct (or, alternatively, to schedule by 2/25/20 an inspection/appraisal after 2/25/20 at a time that is convenient for the lienholders).
January MOR (dkt. 73)
This MOR (dkt.73, p.17) shows general liability insurance due to
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expire/only paid through 1/25/20. Has that insurance been extended? Are the MORs up to date?
Prosecution of this case
As set forth above, Debtor's prosecution of this case appears to be inadequate. Cash collateral motions are known as "first day" motions; but Debtor's cash collateral motions have been filed belatedly, served incorrectly (despite this Court's prior direction), and presented in a confusing manner (it is ambiguous whether the second motion supersedes or is in addition to the first motion). Similarly troubling, Debtor's application to employ special counsel has been filed belatedly, and neither that application nor Debtor's status report adequately address the cost/benefit analysis about pursuing that litigation and selling the 69th Way property or otherwise addressing possible methods to stop the running of high interest rates that could wipe out any value in this bankruptcy estate. What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Cash collateral motion (dkt.31&32)
Grant in part and deny in part on an interim basis, as set forth in calendar no. 2, 1/14/20 at 1:00 p.m.
Status report
At the hearing on 12/17/19 this Court orally directed Debtor's counsel to file a status report no later than 12/31/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Amended November Monthly Operating Report ("MOR," dkt. 43)
State court suit
The MOR reflects a $5,000 payment to James A. Judge, Esq. related to a civil law suit. Dkt. 43, p.9. Debtor also states that "a civil law suite against Aztec Financial (Secured Creditor) is pending." Id. at p.30.
The docket does not reflect any application to employ Mr. Judge as special counsel. In addition, there is no disclosure whether this payment was on account of prepetition or postpetition fees/costs/other charges. Should this Court issue an order directing Mr. Judge to show cause why he should not disgorge that payment and/or why he, Debtor, and/or Debtor's bankruptcy counsel should not have a remedy imposed for expending assets of this bankruptcy estate in violation of the Bankruptcy Code?
Car insurance
The MOR reflects that Debtor's car insurance is due to expire on 12/31/19. Id. at p.26. Has Debtor obtained replacement insurance?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., brief status report due 2/4/20.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Cash collateral motion (dkt.31-33)
Debtor has self-calendared this motion for 1/14/20 at 1:00 p.m. That is over a month after the petition date.
What is Debtor doing with the cash meanwhile? There may be no good answer: either Debtor is using the cash, in violation of 11 U.S.C. 363(c), or Debtor is not using the cash to pay essential expenses, in violation of Debtor's duties to manage the estate and pay utility bills and other ordinary and necessary expenses in a timely manner (see 11 U.S.C. 1107-08 and 28
U.S.C. 959(b).
Why did Debtor not use the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) to have this matter heard on 14 days' notice, or alternatively apply for an order shortening time if the matter needed to be heard before that 14 day period?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/14/20 at 1:00 p.m., brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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NATHANAEL YUN AND JONG SUK CHOI
vs DEBTOR
Docket 79
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 4/21/20 at 1:00 p.m.).
Revised Tentative Ruling for 3/31/20:
Grant in part, as set forth below. Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology, and scope of discussion
One terminology issue has to do with Debtor's corporate structure.
Debtor is a California nonprofit religious corporation. This Court understands that Debtor has no "equity interest holders" per se. But in discussing the scope of the automatic stay it is helpful to distinguish between persons who might be in a debtor-creditor relationship with Debtor (e.g., arising from LA Open Door's lease of Debtor's property) and persons who assert the sort of control typically exercised by equity interest holders. The following discussion sometimes refers to the latter as "equity."
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Another issue of terminology is the distinction between Debtor as an
entity and the factions that seek to control Debtor and its property. There appear to be essentially two factions in the present disputes: one led by Rev. Joo Mo Ko (the "Ko Faction") and another consisting of Rev. Jong Suk Choi aka Olaf Choi, the LA Open Door Presbyterian Church ("LA Open Door"), and The Western Presbytery of the Hapdong ("Hapdong") (collectively, the "Choi Faction"). This tentative ruling will attempt to distinguish among each of these two factions and Debtor itself.
On a related issue, the factions' governance dispute appears to include not just control of Debtor itself but also which church organization governs Debtor's structure. These disputes include whether Debtor and LA Open Door did or did not merge, and whether the local church (i.e., Debtor, either as a separate entity or merged with LA Open Door) is affiliated with/part of the LA Presbytery of the World Korean Presbyteryan Church ("World Church") or Hapdong or both. See dkt.71, pp.3:13-4:4, 4:25-5:16, 6:13-9:24.
One more preliminary issue is that this tentative ruling covers two motions at once. Both motions deal with the applicability of, and relief from, the automatic stay of 11 U.S.C. 362(a). The Ko Faction seeks an order stating that the automatic stay applies to the State Court litigation (dkt. 71, the "Stay Motion"). Conversely, the Choi Faction disputes that any stay applies but, to the extent this Court determines that the automatic stay does apply, requests that this Court grant them relief from the automatic stay to continue with that litigation (dkt. 79, 80, 81, the "R/S Motion").
Notice
It is unclear whether service has been accomplished in accordance with Rules 4001(a)(1) (Fed. R. Bankr. P.), or if there are sufficient grounds for ex parte relief under Rule 4001(a)(2). The parties are directed to address those issues. Presuming for purposes of discussion that those issues are adequately resolved, the tentative ruling on the other issues is as follows.
The automatic stay does apply
This is a more thorny issue than first appears. And arguably it is not necessary to determine whether the automatic stay applies, because as set forth below the tentative ruling is that there is "cause" (11 U.S.C. 362(d)(1)) to grant relief from any stay that does exist.
But, as set forth later in this discussion, the tentative ruling is to modify
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but not terminate the automatic stay, so it makes a difference if there is or is not any automatic stay to begin with. The tentative ruling is that, although several aspects of the automatic stay do not apply, one does apply.
(a) 362(a)(1)
Section 362(a)(1) operates as a stay of "the commencement or continuation . . . of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title." 11
U.S.C. 362(d)(1) (emphasis added). No stay exists under section 362(a)(1) because the subject litigation does not include any claims, counterclaims, or other legal actions against Debtor. See Parker v. Bain, 68 F.3d 1131 (9th Cir. 1995).
The Ko Faction asserts that section 362(a)(1) applies because the claims by Debtor (or, more precisely, by the Ko Faction purporting to act for Debtor) "have the same effect as if they had been brought by the Defendants instead" (i.e., by the Choi Faction) and therefore should be characterized as "effectively causes of action against the Debtor." Dkt.93, p.10:9-10 (emphasis added). There is no authority cited for that proposition. To the contrary, it is well established that the act of defending against claims brought in the name of a debtor is not stayed. See, e.g., In re Merrick, 175 B.R 333, 338 (9th Cir. BAP 1994). The tentative ruling is that the automatic stay of section 362(a)(1) does not apply.
(b) 362(a)(3)
Section 362(a)(3) operates as a stay of "any act to obtain possession of property of the estate or of property from the estate or to exercise control over property of the estate." 11 U.S.C. 362(d)(3).
Property "of" or "from" the estate
Although claims held by a debtor are property of the bankruptcy estate, claims about who controls a debtor are not "property of the estate." Any "possession" of property that Debtor owned as of the petition date stays with Debtor, regardless who controls Debtor. The Ko Faction's arguments to the contrary (e.g., dkt.93, pp.10:25-6:12) are not persuasive.
Acts to exercise "control" over property of the estate
The Ko Faction's alternative argument is more persuasive. In this case
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the gravamen of the parties' disputes is who has control over Debtor's real property, alleged to be worth roughly $17 to $25 million or more (dkt.71, p.4:9; dkt.84, p.5:19-21). There are interrelated disputes about whether each faction is entitled to control Debtor or is merely a creditor or other type of interested party - e.g., whether LA Open Door is merely a lessee, which is or is not current on rent, or if LA Open Door merged with Debtor and the Choi Faction now controls Debtor.
The issues involve not merely theoretical or future control. The issues include who has current control over physical access to the real property for church services, who can examine books and records, who can use Debtor's name, who can speak for Debtor, who can make agreements for Debtor, who has signing authority over its bank accounts, etc.
In this situation the tentative ruling is that the stay does apply, because the disputes over governance are so intertwined with the control of Debtor's property that they constitute acts "to exercise control over property of the estate" within the meaning of 11 U.S.C. 362(a)(3) (emphasis added). See, e.g., dkt.71, p.16:20-26; Allentown Ambassadors, 361 B.R. 422, 435-40 & nn.34-40 (Bankr. E.D. Pa. 2007) (extensive review of cases, concluding that whether section 362(a)(3) applies depends on "(1) the nexus between the conduct at issue and the property interests of the bankruptcy estate, (2) the degree of impact on the bankruptcy estate, and (3) the competing legal interests of the non-debtor parties") (footnotes omitted).
As the Ko Faction explains:
The Complaint [in the State Court action that is the main subject of the motions regarding the automatic stay] thus alleges that the current state of affairs is that the Defendants are exerting control over the Property, to the exclusion of the Debtor. The Debtor seeks a declaration by the Court as to the respective rights of the parties. The relief sought in the Complaint is thus a zero sum game; if the Debtor fails to obtain this relief, Defendants will continue to exert control over the Property to the exclusion of the Debtor. If the Debtor prevails, the opposite result will occur. [Dkt.71, p.8:17-22 (emphasis added)]
The same exclusive control applies not just to Debtor's real property but also to every other type of property: Debtor's name, bank account, goodwill, etc.
The Choi Faction cites authority that, at least as a general proposition,
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governance disputes are not stayed by section 362(a)(3). Dkt.84, pp.18:26-20:10. But the tentative ruling is that the cited authorities are distinguishable.
The decision on which the Choi Faction principally relies is In re Am.
Media Distribs., LLC, 216 B.R. 486 (Bankr. E.D. N.Y. 1998). But that decision notes that there was "little or no explanation as to why the automatic stay would apply" and the principal focus was only on the "distraction" that the dispute would cause. Id. at 489.
Another decision cited by the Choi Faction did not involve the automatic stay - it never even cites section 362. Rather, it involved whether to enjoin stockholders from exercising their regular voting rights to elect directors, which is not at issue in this case. See In re Johns-Manville Corp., 801 F.2d 60, 64-69 (2d Cir. 1986).
The last decision cited by the Choi Faction involved the voting of pledged shares, but there is no indication that such voting was anything beyond the conventional application of nonbankruptcy contract and voting rights. In re Marvel Ent. Group, 209 B.R. 832, 838-40 (D. Del. 1997). In fact, Marvel distinguishes contrary authorities as involving creditor/shareholders exercising extraordinary remedies, in contrast to "the conventional case of a shareholder seeking to invoke its corporate governance rights" and "matters of corporate governance in the orthodox sense." Id. at 839 (citations and internal quotation marks omitted, emphasis added).
Unlike Marvel, this case involves disputes by the Ko Faction and the Choi Faction that are anything but a "conventional" or "orthodox" exercise of equity holders' voting rights. Instead, both factions allegedly have a mix of roles that appear to include both "claims" (in the broad bankruptcy sense) and the excerise of "equity control," and both factions assert the right to control the disposition of Debtor's real property and other assets. It is difficult to see how the factions' acts to wrest control of Debtor and all its property from one another are not acts to "exercise control over property of the estate." 11
U.S.C. 362(a)(3).
This is illustrated by the fact that the Ko Faction has filed a motion to appoint a real estate agent to sell the real property. Similarlly, the Choi Faction has filed a motion to dismiss this bankruptcy case, which would have the effect of terminating the automatic stay and other provisions of the Bankruptcy Code that protect the estate's real property and its rights to whatever rents are or are not being paid. See, e.g., 11 U.S.C. 362(a)(3)&(c)
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(2)(B), and 549.
In other words, the papers filed in this Bankruptcy Court reflect that the factions' litigation in State Court is not just a conventional stockholder dispute but is a fight among parties whose roles as equity, or creditors, or something else is far from clear, and is a fight over "control" of Debtor's property as much as it is a fight over control of Debtor itself.
In these circumstances, the tentative ruling is that the automatic stay of section 362(a)(3) applies.
(c) Conclusion regarding application of the automatic stay
For the foregoing reasons the tentative ruling is that the automatic stay does apply. But, as set forth below, the tentative ruling is to modify the automatic stay to permit the parties to continue their State Court litigation.
Alternatively, even if the automatic stay were inapplicable to the State Court litigation, the stay still would apply in other respects. For example, the stay would prevent any party from enforcing any future judgment for money damages by collecting out of property of the bankruptcy estate. See 11
U.S.C. 362(a)(1), (3), (4), (6) and (7). Therefore, it is still important to determine how much relief to grant, even if the stay does not apply to the governance/control aspects of the State Court litigation.
There is "cause" to grant relief from the automatic stay (if it applies)
Legal standards
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004).
Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or
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interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Application of the legal standards
Based on the present record, the tentative ruling is that these factors weigh in favor of modifying the automatic stay to permit the parties to continue their State Court litigation.
As to the first Curtis factor (would relief result in partial or complete resolution of the issues), the tentative ruling is that granting relief would result in complete resolution of the issues. The State Court appears to have all the parties before it, and to be addressing the same governance/control issues that this Bankruptcy Court would have to address, so it can completely resolve these issues.
True, governance issues are also a critical threshold issue for bankruptcy purposes. As the State Court put it, "it's hard for me to believe that the Bankruptcy Court doesn't, as a threshold matter, decide who's in charge." Tr. 2/21/20, p.12:7-9 (dkt.71, Ex.10, at PDF p.139). But, as the State Court also observed, the issues are the same in both fora. See Tr. 2/21/20, p.14:11-13 (dkt.71, Ex.10, at PDF p.141) ("the threshold issue is I
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suspect the Bankruptcy Court does decide who's in charge just like I'm trying to do for this preliminary injunction") (emphasis added).
As to the second Curtis factor (connection with or interference with the bankruptcy case) and the seventh Curtis factor (prejudice to other creditors/interested parties) the tentative ruling is that, far from interfering with this bankruptcy case or causing prejudice, resolution of the issues that are already well underway in the State Court is essential to determine the bankruptcy issues: e.g., whether Debtor's bankruptcy petition was even authorized; who is authorized to determine the disposition of property of the bankruptcy estate; who has authority to decide what litigation to pursue on Debtor's behalf; etc.
As interesting as these issues would be for this Bankruptcy Court to delve into, the roughly 2000 pages of documents attached to the Choi Faction's motion papers (dkt. 79) show that this Bankruptcy Court would be reinventing the wheel. Starting over and re-litigating the issues would be prejudicial to all parties in interest, and it appears that resolving these issues in State Court is the most expeditious and efficient way to address these issues.
As to the fourth Curtis factor (whether a specialized tribunal has been established to hear the action) and the eleventh Curtis factor (whether the proceedings have progressed to the point where the parties are prepared for trial), the tentative ruling is that, (i) although the State Court is not specialized in the sense of limiting itself to corporate/religious governance/control issues, the same is true for this Bankruptcy Court, so this factor is neutral, and (ii) although the proceedings in State Court appear to be far from any trial, the roughly 2000 pages show that those proceedings are well underway.
As to the tenth Curtis factor (interest of judicial economy) the tentative ruling is that forcing the parties to start anew in this Court would result in a duplication of efforts and would be a waste of judicial resources.
As to the twelfth Curtis factor (the impact of the stay on the parties and the "balance of hurt"), the tentative ruling is that the bankruptcy petition has already delayed adjudication of the issues before the State Court, and caused considerable expense and disruption, and that these things fall more heavily on the Choi Faction than the Ko Faction. Among other things, the Choi Faction was not given adequate notice by the Ko Faction of the extraordinary "emergency" relief that the latter sought in this Bankruptcy Court, and it turns out that, so far as this Court can discern, there is no emergency.
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To be clear, this Court is not saying that there is no legitimate need for bankruptcy protection. True, it is not apparent that Debtor is insolvent. But the automatic stay and 11 U.S.C. 549 may provide broader protection than what is available in other fora to protect against unauthorized transfers of property. For example, a typical injunction only applies to specified parties and specified property, and it does not necessarily render acts in violation of the injunction void ab initio. In contrast, the automatic stay applies even to unknown parties and unknown property and acts in violation of the stay are void ab initio. See, e.g., In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992).
But there is no reason known to this Court why the Ko Faction could not have gained the legitimate protections of the automatic stay and section 549 and then stipulated to relief from the automatic stay to conclude the State Court litigation. Instead, as noted above, the Ko Faction sought "emergency" relief with inadequate notice, in what appears to be an attempted end-run around the State Court proceedings.
For all of these reasons, the tentative ruling is that any continued stay of the State Court proceedings has greater cognizable impact on the Choi Faction than the Ko Faction, and that the "balance of hurt" also favors granting relief from the stay.
In addition to the precise factors outlined in Curtis, this Court is considering all the other facts and circumstances. In the interest of comity and to discourage forum shopping, the tentative ruling is that it is appropriate for the litigation to continue in the State Court. That is the initial forum that the Ko Faction selected, and it is the forum that the Choi Faction favors retaining.
For all of the foregoing reasons, the tentative ruling is that under the Curtis factors and analysis there is "cause" (11 U.S.C. 362(d)(1)) to grant relief from the automatic stay as set forth below. This Court considers below whether there is an alternative basis on which relief from the automatic stay must be granted.
Mandatory abstention does not apply
An alternative ground for relief from the automatic stay would be if mandatory abstention applies. ("Relief" from the stay does not necessarily mean immediate termination of the stay - it might be appropriate to modify but not terminate the stay, or to leave it fully in place for some period of time, to give Debtor a "breathing spell" - but the point is that, if mandatory abstention
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were to apply, that would be an alternative basis for some form of relief from the automatic stay.)
Mandatory abstention is governed by statute:
Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 [i.e., the Bankruptcy Code] but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court [and the bankruptcy court as a unit thereof] shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction. [28 U.S.C. 1334(c)(2) (emphasis added).]
The emphasized terms "related to," on the one hand, and "arising under" or "arising in," on the other hand, are terms of art. The Supreme Court has held that the latter are equivalent to the statutory term "core" under 28
U.S.C. 157(b)(1). Stern v. Marshall, 564 U.S. 462 (2011).
A non-exclusive list of matters defined as "core" proceedings is set forth in 28 U.S.C. 157(b)(2). The tentative ruling is that who has authority to file a bankruptcy petition, make decisions for a debtor in possession, and control its property is a "core" proceeding, as a matter of statutory construction (28 U.S.C. 157(b)(2)(A) & (O)). See e.g. In re Fisher Island Invs., Inc., 778 F.3d 1172 (11th Cir. 2015) (confirming bankruptcy court had statutory authority over ownership dispute under 28 U.S.C. 157(b)(2)(A), (O), because "ownership issue is a core matter that clearly ‘arises under’ or ‘arises in a case under’ chapter 11. Resolution of threshold ownership issue was critical to the administration of the Alleged Debtors’ estates ").
Turning to Constitutional limitations, a determination of who controls Debtor and its property is sufficiently central to the administration of the bankruptcy estate that it has been held to be what is sometimes called "Constitutionally core." See e.g., In re Fisher Island Invs. Inc., 778 F.3d at 1192 (affirming bankruptcy court’s determination that it had constitutional authority over ownership dispute because "[t]he ownership issue does not simply have ‘some bearing’ on the bankruptcy proceedings the bankruptcy
court could not undertake the bankruptcy proceedings without first determining who owned the Alleged Debtor, and thus who represented them "); In re First Korean Christian Church of San Jose, 567 B.R. 575,
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578-578 (Bankr. N. D. Cal. 2017) (rejecting argument that bankruptcy court lacked jurisdiction to determine who controlled Debtor and noting that although bankruptcy court must defer to church hierarchy for resolution of religious issues, bankruptcy court could "apply ‘neutral principals of law’ such as corporate governance in settling disputes as to ownership of church property ...").
True, the governance of Debtor depends entirely on nonbankruptcy issues: (i) interpretation and application of nonbankruptcy law and (ii) interpretation and application of nonbankruptcy agreements and principles of the local church and any national or international church organizations. But it is difficult to conceive of anything more central to the administration of a bankruptcy case than determining who has authority to file the bankruptcy petition, or to hire professionals for the debtor in possession, or to sell a debtor's assets or otherwise manage the bankruptcy estate as a trustee for the benefit of creditors.
Therefore, the tentative ruling is that any determination of who controls Debtor comes within this Bankruptcy Court's "arising in" jurisdiction and is both statutorily and constitutionally core. In other words, the tentative ruling is that mandatory abstention does not apply, so this is not a ground on which this Court will grant relief from the automatic stay.
Scope of relief
Under Section 362(d) this Court "shall" grant relief if the statutory criteria for such relief are established. But such relief need not take the form of "terminating" the stay. The statute states: "relief ... such as by terminating, annulling, modifying, or conditioning such stay ...." 11 U.S.C. 362(d) (emphasis added).
The tentative ruling is to modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate
The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless,
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the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues
Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Comity with State Court
The State Court Judges stayed their proceedings pending this Bankruptcy Court's ruling on today's motions. This Bankruptcy Court appreciates the State Court's careful approach to the possible existence of the automatic stay, which turned out to be a complex issue as discussed above.
This Bankruptcy Court also seeks to preclude any undue delays or potential gamesmanship in future by parties who might seek to invoke the automatic stay when it does not apply (either because of this Bankruptcy Court's order(s) granting relief from the automatic stay, or because of the inherent limits of section 362(a)). To that end, this Bankruptcy Court offers the following.
First and foremost, this Bankruptcy Court is available to make rulings on the applicability of the automatic stay, and to grant any appropriate relief. The Local Bankruptcy Rules and this Court's posted procedures permit expedited relief, including speedy telephonic hearings if warranted. Even during this COVID-19 situation, this Bankruptcy Court's law clerks and the
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Clerk's Office staff are constantly monitoring voicemails, processing orders, setting up telephonic hearings, etc.
Second, recognizing that even speedy relief might not be speedy enough, this Bankruptcy Court reiterates that, contrary to the Choi Faction's arguments (dkt.71, pp.21:25-23:7), the State Court has concurrent jurisdiction. The State Court can interpret (a) the automatic stay (which is deemed to be an order of this Bankruptcy Court), and (b) any other order of this Court, such as an order modifying the stay. This is no different from the State Court interpreting the orders of any other court, as it does all the time.
In other words, the State Court need not halt its proceedings every time any litigant asserts that the automatic stay might apply. See 28 U.S.C. 1334(b) (federal District Courts, and the Bankruptcy Courts as a unit thereof, have "original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11") (emphasis added), In re Gruntz, 202 F.3d 1074, 1083-84 (9th Cir. 2000) (distinguishing State Court orders "modifying the automatic stay" from those "merely interpreting federal law").
Of course, it is up to the State Court, in the exercise of its judgment, to assess whether the risks of proceeding are outweighed by the benefits. See Gruntz, 202 F.3d 1074, 1087 (if State Court proceeds without order of Bankruptcy Court, the former "risks having its final judgment declared void"). Meanwhile, again, this Bankruptcy Court will make every effort to grant speedy rulings on any issue that might arise involving the automatic stay.
Conclusion
Assuming for that sufficient notice notice has been provided under Rule 4001(a) for this Court to rule on the motions related to the automatic stay, the tentative ruling is as follows. The automatic stay applies under 11
U.S.C. 362(a)(3), but there is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is that such relief should take the form of modifying the automatic stay as set forth above.
As set forth in more detail above, the tentative ruling is that the parties can proceed with their State Court litigation to final judgments or orders. But the automatic stay remains in place to prevent collection of any monetary judgment out of the bankruptcy estate or disposition of estate property, absent further order of this Bankruptcy Court.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
Movant(s):
Jong Suk Choi Represented By Monica Y Kim
Nathanael Yun Represented By Monica Y Kim
2:00 PM
fr. 3/31/20
Docket 71
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 7, 4/21/20 at 2:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.).
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
fr. 2/28/20, 03/31/20
Docket 16
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 7, 4/21/20 at 2:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
fr. 2/28/20, 03/31/20
Docket 15
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 7, 4/21/20 at 2:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
Does Not Apply To The State Court Action fr. 2/28/20, 03/31/20
Docket 29
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 7, 4/21/20 at 2:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
fr. 2/28/20, 03/31/20
Docket 25
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 7, 4/21/20 at 2:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 40, 3/31/20 at 1:00 p.m.)
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
Docket 1
Tentative Ruling for 4/21/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
fr. 3/3/20, 4/7/20
Docket 15
Tentative Ruling for 4/21/20:
Grant in full, as to all property of Debtor's bankruptcy estate (see dkt. 54), including the 3775 Ruthelen Street property, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument
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is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Grant in part, on the same conditions as in this Court's prior interim order (dkt.54), and continue to 4/21/20 at 10:00 a.m., for the reasons set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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Key documents reviewed (other than the motion and opposition papers): Jacob and Maryam Haiavy Motion To Approve Stipulation For Adequate Protection, Use Of Cash Collateral And Relief From Stay On Second Lien Secured By Real Property Located At 3775 Ruthelen Street, Los Angeles, CA 90018 (the "Proposed Stipulation," dkt. 81).
The tentative ruling is to temporarily continue the automatic stay as to the 3775 Ruthelen Street property, through the continued hearing on 4/21/20 at 10:00 a.m., to (i) determine whether any oppositions or a request for a hearing will be filed as to the Proposed Stipulation (dkt. 81), and (ii) should no opposition or request for a hearing be filed, and if this Court finds no issues with the Proposed Stipulation, to permit time for an order to be lodged and issued on the Proposed Stipulation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Grant in part, and continue in part to 4/7/20 at 10:00 a.m., subject to the following conditions. Appearances are not required.
The tentative ruling is (1) temporarily to continue the automatic stay as to the 3775 Ruthelen Street property, through the continued hearing on 4/7/20 at 10:00 a.m., to permit the parties time to obtain an appraisal of the property (see dkt. 35, pp.2-3, and dkt. 36), and assess Debtor's progress in this case, and meanwhile (2) to grant the motion as to all remaining property of the Debtor's bankruptcy estate, such that the automatic stay applies to all such property.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
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The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited rulings. This Court's tentative ruling is that any finding of "good faith" is (a) solely for purposes of this motion and
(b) as to the 3775 Ruthelen Street property, solely on the limited basis set forth at the start of this tentative ruling. In other words, any good faith finding by this Court is not intended to have any binding effect with respect to the existence or lack of existence of good faith beyond the foregoing very limited rulings.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
Docket 1
Tentative Ruling for 4/21/20.
Continue as set forth below. Appearances are not required on 4/21/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's motion to impose or continue the automatic stay (dkt. 15) Grant as set forth in calendar no. 8, 4/21/20 at 2:00 p.m.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/2/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
8:30 AM
Docket 33
- NONE LISTED -
Debtor(s):
Tracey P Nubia Represented By John M Boyko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Debtor(s):
Billy Bruce Rubio Represented By Brandon J Anand
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Continue to 5/28/20 at 8:30 a.m., with a deadline of 5/14/20 to file and serve the debtors' declaration addressing the following issue, and a deadline of 5/21/20 for any reply. Appearances are not required on 4/30/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice.
Reason: The KBB printout states that it is a "private party" value, but under 11 U.S.C. 506(a)(2) the value means "the price a retail merchant would charge for the property ..." (emphasis added) (which typically is higher than the "private party" value).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Oscar J. Gutierrez Represented By
Rabin J Pournazarian
Joint Debtor(s):
Maria A. Gutierrez Represented By
8:30 AM
Trustee(s):
Rabin J Pournazarian
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 23
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the Debtor should be prepared to address the issues raised in the Chapter 13 Trustee's Comments Or Objection (dkt. 25).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Barbara I Beringer Represented By Devin Sawdayi
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments
Docket 26
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the Debtor should be prepared to address the issues raised in the Chapter 13 Trustee's Comments Or Objection (dkt. 27).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bette Jo Esquivel Represented By Sam Benevento
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 85
Deny. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (in addition to motion papers): MEB Loan Trust's opposition (dkt. 89), debtor's reply (dkt. 91)
Proposed order: Respondent creditor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Reasons:
No authority for Court to compel participation in "LMM" loan modification program
Debtor has not cited any authority that this Court has the power to compel creditors (if they timely object) to grant loan modifications or to participate in the LMM program. Nor is Judge Bason aware of any such authority in the present circumstances.
Generally the loan modification issue comes up in the context of a
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motion for relief from the automatic stay, and in that context this Court might have the authority, depending on the facts and circumstances, to rule that one form of adequate protection is to require monthly payments equal to what the LMM program would require, and to deny any request to terminate the automatic stay unless and until the creditor has participated in the LMM program and determined whether to approve or reject any loan modification. But that is not the present situation.
Conceivably there could be other circumstances in which a bankruptcy court might have some basis under an applicable statute or contract to compel a creditor to participate in the LMM program. But Judge Bason is not aware of any such authority.
Insufficient grounds to compel acts that have not been shown to have any likelihood of success
Alternatively, even if this Court had any discretion to require participation in the LMM program, Debtor has not established that ordering such participation would be appropriate in this case. The loan servicer asserts that the current holder of the debt is not prepared to enter into any loan modification. Conceivably, if Debtor could force that creditor to participate in the LMM program and could make a sufficiently persuasive presentation of evidence and arguments, that creditor potentially could be persuaded to change its mind. But there is no evidence that this is remotely likely.
Instead the creditor objects that it has already obtained relief from the automatic stay, and Debtor has not articulated grounds to reimpose the stay to further delay any foreclosure efforts. So, if this Court were to order participation in the LMM program, it appears that would only cause added expense.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Mark Mercado Represented By Teresa Straley
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 13
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mary Ann Canez Represented By Giovanni Orantes
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
Docket 29
- NONE LISTED -
Debtor(s):
Migan Murray Represented By Andrew Moher
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 54
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
On 2/28/20, Mr. Munoz filed a fee application seeking approval of
$1,100 in no-look fees as follows: (i) $350 for an opposition to Chapter 13 Trustee's motion to dismiss or convert case ("MTD Opposition") and (ii) $750 for an unopposed motion to modify plan ("MOMOD") (dkt. 54). On 3/24/20, this Court issued an order setting the matter for hearing on the grounds that Mr. Munoz has not established sufficient cause to charge a fee of $350.00 for the MTD Opposition because (a) there is no opposition on the docket, and (b) Mr. Munoz did not attach timesheets substantiating the fees, and because this Court has previously cautioned Mr. Munoz about seeking fees without appropriate documentation (see Case No. 2:15-bk-10060-NB, dkt. 25).
This Court has reviewed Mr. Munoz's declaration (dkt. 58), in which, among other things, Mr. Munoz acknowledges that he is aware of this Court's policies for fee applications and states that he no longer seeks fees for the opposition.
The tentative ruling is that this Court will approve fees in the reduced amount of $750.00 (for the MOMOD), with a caution to Mr. Munoz that sanctions may be warranted if this issue occurs again in future.
The tentative ruling is also that Mr. Munoz is directed to appear to discuss his billing practices. Mr. Munoz is not permitted to charge any fees
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for appearing at the hearing.
Proposed Order: Mr. Munoz is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jacqueline Ann Meeley Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20, 2/27/20
Docket 96
Tentative Ruling for 4/30/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Notice of this continued hearing
At the 2/27/20 hearing, Debtor's Husband appeared and requested a continuance of the hearing. This Court was persuaded to do so, and directed Debtor's Husband to give notice of this continued hearing. As of the drafting of this tentative ruling, the docket does not reflect that such notice was given.
Merits of the motion to approve settlement as amended (dkt.96, 103, 104), and order to show cause ("OSC") re dismissal or conversion
This Court's tentative ruling is the same as for the 2/27/20 hearing, reproduced below, except that given the additional time that has passed without addressing this Court's concerns there is an even stronger basis to issue the OSC. The tentative ruling is to include within the OSC whether any dismissal should be with a bar under 11 U.S.C. 109(g)(1).
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Appearances required. The tentative ruling is to deny the motion to approve the settlement, as amended (dkt.96, 103, 104), for the reasons stated in this Court's interim order (dkt.100). In addition, the tentative ruling is to issue, pursuant to 11 U.S.C. 105(a), an order to show cause why this case should not be converted to chapter 7 or dismissed, because:
at the hearing on 1/23/20 this Court was persuaded to continue this matter with a deadline of 2/13/20 for Debtor to file supplemental papers addressing the issues raised in this Court's interim order (dkt.100) but no supplemental papers have been filed;
Debtor has failed to abide by her duties as a chapter 13 debtor (11
U.S.C. 521) based on (a) her belated acknowledgment of her interest in the subject property and (b) her failure either (i) to attempt to obtain any recovery for her creditors based on that interest (let alone a fair recovery) or (ii) to offer a colorable explanation for failing to do so; and
Debtor has failed adequately to address the issues raised by this Court (see dkt.100).
The foregoing facts appear to constitute grounds for conversion or dismissal under 11 U.S.C. 1307(c), including but not limited to paragraph (1) thereof.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20:
8:30 AM
Appearances required. This Court has reviewed the Amended Motion For Court Approval Of Proposed Marital Settlement Agreement (dkt. 103, filed and served on some, but not all, creditors on 1/9/20). The tentative ruling is to DENY the amended motion for the reasons set forth in this Court's order setting this hearing (dkt. 100).
Order: After the hearing this Court will prepare the order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Lisa Sandoval Represented By Raymond Perez
Movant(s):
JOSE MEJIA Represented By Jonathan T Nguyen Cynthia Grande
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
and (w) to modify plan or suspend plan payments fr. 12/19/19, 2/27/20
Docket 63
Tentative Ruling for 4/30/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the trustee should be prepared to address whether debtors' declarations (dkt. 84, 85) do or do not adequately address the issues raised in the Trustee's response and request for hearing (dkt. 66).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Appearances required. There is no tentative ruling, but the trustee should be prepared to address whether debtors' supplemental reply (dkt. 82) adequately addresses the issues raised in the Trustee's response and request for hearing (dkt. 66).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/19:
Appearances required. There is no tentative ruling, but the trustee should be prepared to address whether debtors' reply (dkt. 73) adequately addresses the issues raised in the Trustee's response and request for hearing (dkt. 66).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diane Turner Gates Represented By Brad Weil
Joint Debtor(s):
Steven Robert Gates Represented By Brad Weil
Movant(s):
Diane Turner Gates Represented By Brad Weil
Steven Robert Gates Represented By Brad Weil
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/26/20
Docket 128
Tentative Ruling for 4/30/20:
Bruce Boice, Esq. has failed to respond to (a) this Court's order to show cause why he should not be sanctioned (the "OSC," dkt.128) and (b) this Court's order continuing the hearing on the OSC and setting another deadline for his responde (the "Second Order," dkt.131). Under the Second order, Mr. Boice has already incurred $200.00 of punitive sanctions and $200.00 of coercive sanctions. There is no tentative ruling but, if Mr. Boice fails to appear at this continued hearing, this Court may impose additional coercive and/or punitive sanctions. Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 3/26/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Mr. Bruce Boice, Esq. should be prepared to address the issues raised in this Court's order to show cause (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rene Medina Represented By
Bruce A Boice
Joint Debtor(s):
Maria Medina Represented By Bruce A Boice
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/26/20
Docket 62
Revised Tentative Ruling for 4/30/20:
Continued per parties' stipulation (dkt. 79) and order thereon. Appearances are not required on 4/30/20.
Tentative Ruling for 4/30/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date pursuant to allow the parties to engage in settlement negotiations (dkt. 75, 76). There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Revised Tentative Ruling for 3/26/20:
Continued to 4/30/20 at 8:30 a.m. per parties' stipulation (dkt.75) and order thereon. Appearances are not required on 3/26/20.
Tentative Ruling for 3/26/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis
Background
On 9/16/19 creditor Ajax Mortgage Loan Trust 2019-A etc. ("Ajax") filed its proof of claim (Claim No. 17-1) that incorrectly stated that Debtor's mortgage has a fixed interest rate, when in fact the interest rate varies every month and, confusingly, the monthly payments vary every year. On 10/7/19, 11/18/19, and 12/16/19 Ajax filed notices of payment changes. On 3/12/20 Ajax filed an amended proof of claim (Claim No. 17-2).
On 1/21/20 Debtor filed a motion (dkt.62) objecting to Ajax's notices of payment change, and requesting that Debtors be entitled to continue paying
$1,561.02/mo. instead of the increased payment of $1,685.91/mo. that was to commence 2/1/20 according to Ajax's second notice of payment change. On 3/12/20 Ajax filed its response (dkt.72), which admitted certain errors but (a) pointed out that Debtors were well aware that their loan had a variable interest rate based on the changes in their prior chapter 13 case, their own loan modification request, and the history of this case, and (b) argued that Debtors had not been prejudiced, but (c) stating that Ajax "has applied the first two payments at the lower P&I amount listed in the POC." Dkt.72, p.11:11-14. On 3/19/20 Debtors filed their reply arguing that Ajax still has not provided a transparent explanation of all of its calculations; that payments should remain at $1,561.02/mo. and that "Debtors should be entitled to a credit against future payments for any mortgage overpayment that they have paid in excess of said amount until such time as Ajax [or its servicer]
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completes a thorough and transparent principal and interest mortgage payment analysis." Dkt.74, p.5:22-26 (emphasis in original).
Governing Rule
Under Rule 3002.1(b) (Fed. R. Bankr. P.), Ajax was required to provide "a notice of any change in the payment amount" no later than 21 days "before payment in the new amount is due"; Debtor was entitled to object to any such payment change; and, "[i]f no motion is filed by the day before the new amount is due, the charge goes into effect, unless the court orders otherwise." (Emphasis added.) Rule 3002.1(b)(2). Under Rule 3002.1(f),
Falure to Notify. If [Ajax] fails to provide any information as required by subdivision (b) [of Rule 3002.1], the court may, after notice and a hearing, take either or both of the following actions:
preclude [Ajax] from presenting the omitted information, in any form, as evidence in any contested matter or adversary proceeding in the case, unless the court determines that the failure was substantially justified or is harmless; or
award other appropriate relief, including reasonable expenses and attorney's fees caused by the failure. [Rule 3002.1(f) (Fed.
R. Bankr. P.) (emphasis added)]
Under 11 U.S.C. 102(3), "'includes' and 'including' are not limiting.
Rule 9001 (Fed. R. Bankr. P.) applies section 102 to the Rules.
Application of Rule 3002.1 to the facts
This Court has considerable discretion in fashioning appropriate relief based on Ajax's incorrect and confusing notices of payment change. This Court is also concerned that Ajax has not provided enough information and transparency, and on the other hand this Court is not persuaded on the present record that there has been any substantial prejudice to Debtors, although this Court recognizes that it can be difficult for any debtors in bankruptcy to catch up all at once on any shortfalls in mortgage payments, which is one reason why adequate protection orders typically provide several months to cure postpetition arrears. In addition, this Court is concerned that both parties' attorney fees may well exceed the dollar amounts in controversy.
Based on all of the foregoing, the tentative ruling is as follows: Ajax, no later than 4/30/20, must file and serve declaration(s)
establishing at each relevant time (i) the amount of the index interest rate on
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which the variable interest rate is based, (ii) its calculation of the variable interest rates, and the dollar amounts of principal and interest, (iii) the data on which all escrow amounts are based (e.g., copies of documents showing real estate tax amounts and insurance amounts), and (iv) calculations of escrow account balances and monthly payment amounts.
Debtor's response is due 5/14/20.
A continued hearing will be held on 5/28/20 at 8:30 a.m.
Meanwhile, the parties will be ordered to mandatory mediation. Their deadline to lodge proposed mediation order(s) is 4/10/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
George Allen Jordan Represented By
Richard Mark Garber
Joint Debtor(s):
Audrey Carolyn Jordan Represented By
Richard Mark Garber
Movant(s):
George Allen Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Audrey Carolyn Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Cont'd hrg re: Objection to Claim Number 22 by Claimant HSBC Bank USA, N.A.
fr. 3/26/20
Docket 33
Debtor(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Movant(s):
Forest Lewis Person Represented By Sanaz S Bereliani
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20, 3/26/20
Docket 23
Tentative Ruling for 4/30/20:
Deny for lack of prosecution. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Debtor failed to appear at the heaing on 3/26/20. Nevertheless this Court exercised its discretion to continue the hearing.
Debtor still has not filed any supplemental papers addressing the issues raised in the 1/23/20 Tentative Ruling, reproduced below, and Creditor's objection (dkt. 32). Therefore the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Tentative Ruling for 3/26/20:
Deny, because the tentative ruling for 2/23/20, which was not contested and therefore was adopted as this Court's actual ruling, set a deadline of 3/12/20 for Debtor to address the issues in the opposition (dkt. 32), including an explanation of how the amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19, even though it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appearances are not required. If you wish to contest the tentative ruling you must arrange for a telephonic appearance. Pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20:
Continue to 3/26/20 at 8:30 a.m. with a deadline of 3/12/20 for the parties to file supplemental papers addressing the issues set forth in the filed objection (dkt.32). Appearances are not required on 1/23/20.
Reasons:
Service
The amended motion papers were not served until 1/7/20 (10 days before the hearing) (see dkt. 26), which is too little time before the hearing.
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Evidence of senior debt
Debtor's amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19 but it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appraisal; date of valuation
The junior lienholder has requested (dkt. 32) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Lionel E Giron
Movant(s):
Blanca Estela Rubalcava Represented By Lionel E Giron Lionel E Giron
8:30 AM
Trustee(s):
Lionel E Giron Lionel E Giron
Kathy A Dockery (TR) Pro Se
8:30 AM
(1/14/2018 to 3/31/2020) (Fee: $53,978.25, Expenses: $0.00)
Docket 235
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtor's counsel should be prepared to address the issues raised in this Court's Order Setting For Hearing Application Of Attonrey For Debtor For Additional Fees And Related Expenses (dkt. 237).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gloria Elisa Galvan Represented By Michael E Clark Nancy B Clark
8:30 AM
Trustee(s):
Barry E Borowitz
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
M & T BANK as Attorney in Fact for Lakeview Loan Servicing
vs DEBTOR
Docket 35
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 41).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Laura Davila Represented By
Javier H Castillo
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 39
- NONE LISTED -
Debtor(s):
Eric Solis Represented By
Julie J Villalobos
Movant(s):
Carrington Mortgage Services, LLC Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 30
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alexandria Victoria Johnson Represented By Brian J Soo-Hoo
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 36
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 9
Grant in part, deny in part, as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the request for confirmation that the stay did not apply to Movant's actions to record the trustee's deed upon sale and confirming that Debtor had no interest in the property at the time of her petition both because
(a) the foreclosure sale concluded prior to the filing of the bankruptcy case and (b) Movant's recordation of the deed within fifteen days of the sale had the effect of perfecting the deed as of 8 a.m. on 3/17/20, which is before the filing of the petition. See In re Bebensee-Wong, 248 B.R. 820 (9th Cir. BAP
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2000) (The recordation of a foreclosure sale deed within fifteen days of the sale does not violate the automatic stay and is not avoidable).
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:20-bk-11019-NB) was dismissed (on 3/11/20) within one year before this case was filed (on 3/17/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no.
2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2) and (d)
(4).
To the extent, if any, that the motion seeks to terminate the automatic
stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any
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bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Attorney fees
Movant requests that its attorney fees be allowed. The tentative ruling is that this Court will not express any view regarding any attorney fee request because (a) in any nonjudicial foreclosure action, attorney fee issues typically are not decided by a court (and in a judicial foreclosure it is the State Court, not this Bankruptcy Court, that would determine attorney fee issues), (b) a motion for relief from the automatic stay is not the proper vehicle to adjudicate attorney fees in this Bankruptcy Court, and (c) this hearing does not involve any claim objection or other proceeding that might properly present that issue for this Court's determination.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santos Soto Pro Se
Movant(s):
U.S. Bank National Association as Represented By
Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 46
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gregory Allen Phillips Represented By Sanaz S Bereliani
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMorgan Chase Bank, N.A. vs
DEBTOR
Docket 39
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sara Maria Cruz Represented By Sanaz S Bereliani
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 147
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sharyl Gwen Bloom Represented By Alan D Irwin
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Josephine E Salmon
Trustee(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
10:00 AM
AMERICREDIT FINANCIAL SERVICES, INC.
vs DEBTOR
Docket 21
- NONE LISTED -
Debtor(s):
William Jose Rodriguez Represented By Erika Luna
Movant(s):
AmeriCredit Financial Services, Inc. Represented By
Jennifer H Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 96
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Relief notwithstanding conversion
Grant the request that the order be binding and effective despite any conversion of this bankruptcy case to a case under any other chapter of Title 11 of the United States Code.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Movant(s):
Cab West LLC Represented By
Randall P Mroczynski
10:00 AM
TD AUTO FINANCE LLC
vs DEBTOR
Docket 12
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rodrigo Q. Perez Represented By Steven B Lever
Movant(s):
TD Auto Finance LLC Represented By Jennifer H Wang
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
LOANDEPOT.COM, LLC
vs DEBTOR
Docket 37
Tentative Ruling for 5/5/20 (same as for 3/10/20):
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fabian Cruz Represented By
Onyinye N Anyama
Joint Debtor(s):
Karen Cruz Represented By
Onyinye N Anyama
Movant(s):
LoanDepot.com,LLC Represented By
10:00 AM
Trustee(s):
Lemuel Bryant Jaquez
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G, MORTGAGE-BACKED SECURITIES, 2018-G
vs DEBTOR
Docket 30
Tentative Ruling for 5/5/20 (same as for 3/31/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred Ken Wing Li Represented By Ryan A. Stubbe
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 42
Debtor(s):
David Reyes Represented By
William G Cort
Movant(s):
Wilmington Savings Fund Society, Represented By
Mark S Krause
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 49
Tentative Ruling for 5/5/20 (same as for 3/31/20):
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [6]/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Ryan Gregory Ortiz Represented By Charles J Brash
Joint Debtor(s):
Debra Diane Ortiz Represented By Charles J Brash
Movant(s):
Ditech Financial LLC Represented By Daniel K Fujimoto Julian T Cotton Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
US BANK TRUST NA
vs DEBTOR
Docket 37
Debtor(s):
Ronny Heredia Represented By William G Cort
Movant(s):
US Bank Trust NA as Trustee of Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 08/06/19, 9/10/19, 10/29/19, 12/10/19, 02/18/20, 03/31/20
NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 29
Debtor(s):
Margarita Dolores Gonzalez Represented By Michael E Clark Barry E Borowitz
Movant(s):
Nationstar Mortgage LLC D/B/A Represented By
Angie M Marth Jacky Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 24
Debtor(s):
Rogelio Cuevas- Flores Represented By William G Cort
Joint Debtor(s):
Beatriz Garcia Cuevas Represented By William G Cort
Movant(s):
U.S. Bank National Association, as Represented By
Renee M Parker Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING, INC.
vs DEBTOR
Docket 32
Debtor(s):
Deonne Louise Marilyn Watson Represented By Elena Steers
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 55
Debtor(s):
William Smith Jr. Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Nancy L Lee Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01045 Elemen v. Trininty Financial Services LLC, LLP, Property Man
Docket 1
Dismiss this adversary proceeding, without leave to amend the Complaint. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the filed documents and records in this adversary proceeding.
Current issues
Trinity Financial Services, LLC ("Trinity"): Motion To Dismiss Adversary Complaint (the "MTD," adv. dkt. 3)
The tentative ruling is to grant the MTD, without leave to amend, for the reasons set forth therein.
Alternatively, the tentative ruling is to dismiss the Complaint as against Trinity, without leave to amend, under preclusion/law of the case principles.
As stated in this Court's order dismissing Debtor/Plaintiff's prior adversary proceeding as to Trinity without leave to amend (Adv. No. 2:19-ap-01182-NB, dkt. 10), Debtor would have to meet the standards for reconsideration (see Rules 9023, 9024 (Fed. R. Bankr. P.)) and follow the proper procedures for
11:00 AM
seeking reconsideration should she wish to seek relief from that order. As of the drafting of this tentative ruling, Debtor has not done so.
Proposed order: Trinity is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Defendant Special Default Services, Inc. ("Special"): Service issues First, there is no proof of service of the summons (adv. dkt. 2).
Second, although Debtor's complaint (adv. dkt. 1) appears to include a proof of service of that complaint, it is not on this Court's mandatory form (available at cacb.uscourts.gov). See adv. dkt. 1, pp. 7-8.
Third, the proof of service indicates that Debtor served the complaint herself, which is not permissible per the instructions on this Court's mandatory form. See id.
Fourth, Debtor did not serve the complaint on Special to the attention of an officer, a managing or general agent, or to any other agent authorized by appointment of law (Rule 7004(b)(3), Fed. R. Bankr. P.), at an address that appears to be reasonably calculated to reach the officer (e.g., corporate headquarters). Note: Judge Bason does not require that a specific individual be named -- "Attn: Officer or Managing/General Agent" is sufficient.
Fifth, Debtor/Plaintiff has not responded to Trinity's MTD, and it appears that all of the arguments in that MTD apply equally to Special. Debtor/Plaintiff has not articulated any reason why it would be appropriate to provide her with an opportunity to correct the service issues, noted above, when her claims appear on their face to be barred by statutes of limitation and other defenses set forth in Trinity's MTD.
Accordingly, the tentative ruling is to dismiss the Complaint, without leave to amend, as against Special. The tentative ruling is that, after the hearing, this Court will prepare the order.
Debtor's address
The address listed for Debtor on the docket of the bankruptcy case does not match the address Debtor has listed in her Complaint. If Debtor's address has changed, she must file Local Form F
1002-1.3.CHANGE.ADDRESS.
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Joint status report
The summons (adv. dkt. 2) directs Debtor/Plaintiff and Defendants to file a joint status report no later than 14 days before this status conference (4/21/20). As of the drafting of this tentative ruling, no status report has been filed.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation [intentionally omitted]
Deadlines
This adversary proceeding has been pending since 2/25/20. [If this Court is persuaded not to dismiss this adversary proceeding then,] Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU
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within 7 days after the status conference, [memorializing whatever dates this Court sets for] the following.
Joinder of parties/amendment of pleadings: N/A Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A Continued status conference: N/A
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Erlinda Grace Tan Elemen Represented By Emmanuel S Vargas
Defendant(s):
Trininty Financial Services LLC, Represented By
Matthew S Henderson
Special Default Services Pro Se
Does 1-10 Pro Se
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Plaintiff(s):
Erlinda Grace Tan Elemen Pro Se
Trustee(s):
Peter J Mastan (TR) Pro Se
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Adv#: 2:20-01045 Elemen v. Trininty Financial Services LLC, LLP, Property Man
Docket 3
Please see the tentative ruling for the status conference (calendar no. 1, 5/5/20 at 11:00 a.m.)
Debtor(s):
Erlinda Grace Tan Elemen Represented By Emmanuel S Vargas
Defendant(s):
Trininty Financial Services LLC, Represented By
Matthew S Henderson
Special Default Services Pro Se
Does 1-10 Pro Se
Movant(s):
Trininty Financial Services LLC, Represented By
Matthew S Henderson
Plaintiff(s):
Erlinda Grace Tan Elemen Pro Se
Trustee(s):
Peter J Mastan (TR) Pro Se
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Docket 26
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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Adv#: 2:20-01008 Dos Cabezas Properties, LLC et al v. 110 West Properties, LLC
Docket 11
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
On 3/31/20, this Court held a hearing on Debtor's motion to dismiss the complaint (adv. dkt. 3, the "MTD"). In advance of the hearing, this Court posted its tentative ruling (set forth below) indicating its intent to grant the MTD and dismiss the complaint. Plaintiffs did not appear at the hearing, individually or through counsel, so this Court adopted the tentative ruling as the final ruling. On 4/2/20, this Court issued an order granting the MTD and dismissing this proceeding (adv. dkt. 11).
On 4/3/20, Plaintiffs filed an objection to dismissal and request for hearing (adv. dkt. 12). As set forth therein, Plaintiffs' counsel states that he tried to appear telephonically to contest the tentative ruling, but was unable to because CourtCall muted his connection.
Accordingly, this hearing was set to allow Plaintiffs' counsel an opportunity to contest this Court's tentative ruling (copied below). There is no tentative ruling, but the parties should be prepared to address whether this Court should set aside the dismissal order.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20 (relevant portions copied below):
This Court has reviewed the parties' joint status report (dkt. 9) and the other filed documents and records in this adversary proceeding.
Current issues
Debtor/defendant’s motion to dismiss (adv. dkt. 3, "MTD"), Plaintiffs’ opposition (adv. dkt. 7), Debtor/defendant's reply (adv. dkt. 10)
Debtor/defendant seeks dismissal of this proceeding under Rule 12(b)
(6) (Fed. R. Civ. P.) (made applicable by Rule 7012, Fed. R. Bankr. P.).
As to Plaintiffs’ first claim for relief under 11 U.S.C. 523(a)(2)(A), the tentative ruling is to grant the motion and dismiss the claim with prejudice for the reasons stated in the MTD. The tentative ruling is also to deny leave to amend because amendment would be futile.
As to Plaintiffs’ second claim for relief for fraud under CCCP 1572, the tentative ruling is to agree with the argument in the MTD that because the claim does not fall within one of the categories set forth in Rule 7001 (Fed. R. Bankr. P.) the complaint must be dismissed, without leave to amend, but also without prejudice to asserting the same or different claims through the normal claims process in bankruptcy matters (and with all rights of Debtor or other parties with standing to object to any such claim).
[Remainder of prior tentative ruling intentionally omitted.]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron
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Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
Plaintiff(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Michael Meyer Represented By Thomas F Nowland
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Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Pro Se
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
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Alliance Foreclosure and Lien Service Corp fr. 4/7/20
Docket 141
Tentative Ruling for 5/5/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Supplemental proof of service (dkt. 145) and notice of continued hearing (dkt. 146), Debtor's opposition (dkt. 153), trustee's reply (dkt. 156)
Reasons:
Service
This matter was originally self-calendared for hearing on 4/7/20, but
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this Court continued the matter to this date and directed Movant to cure the deficient service. This Court has reviewed the Trustee's supplemental proof of service (dkt. 145) and is satisfied that service has been properly effectuated.
Legal Standard
Rule 9019(a) (Fed. R. Bankr. P.) provides that the bankruptcy court may approve a compromise or settlement. "In determining the fairness, reasonableness and adequacy of a proposed settlement agreement, the court must consider: (1) the probability of success in litigation; (2) the difficulties, if any, to be encountered in the matter of collection; (3) the complexity of the litigation involved, and the expense, inconvenience and delay necessarily attending it; (4) the paramount interest of the creditors and a proper deference to their reasonable views in the premises." Martin v. Kane (In re A&C Properties), 784 F.2d 1377, 1381 (9th Cir. 1986).
"Rather than an exhaustive investigation or a mini-trial on the merits, this court need only find that the settlement was negotiated in good faith and is reasonable, fair and equitable." In re Pac. Gas & Elec. Co., 304 B.R. 395, 417 (Bankr. N.D. Cal. 2004) (citing A&C Properties, 784 F.2d at 1381). In approving a settlement agreement, this court must "canvass the issues to see whether the settlement ‘falls below the lowest point in the range of reasonableness." Id. (internal citations omitted). This court need not find that each of the A&C factors have been satisfied, provided that the factors as a whole favor approving the settlement. Id. A "court generally gives deference to a trustee’s business judgment in deciding whether to settle a matter." Goodwin v. Mickey Thompson Entm’t Group, Inc. (In re Mickey Thompson Entm’t Group, Inc.), 292 B.R. 415, 420 (9th Cir. BAP 2003).
The settlement is reasonable, fair and equitable
The tentative ruling is that the proposed settlement is reasonable, fair and equitable as follows.
As to the first A&C Factor (probable success), the tentative ruling is that this factor weighs in favor of approving the settlement because the trustee has adequately informed herself about the nature of the estate’s pre- petition claims by reviewing relevant papers filed in the state court action and has concluded that there is little to no chance of succeeding on the merits (see dkt. 141, Dye Decl. para. 4). Although Debtor contends that the Trustee did not reach out to Debtor’s counsel for insight about any pre-petition litigation strategy or valuation of the claims, Debtor has not established that
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the proposed settlement falls below the lowest point in the range of reasonableness.
As to the second A&C Factor (difficulty of collection) the tentative ruling is that this factor is neutral. There is no evidence in the record to conclude that the Trustee would experience any difficulty in collecting against the settling defendants at a later time.
As to the third A&C Factor (complexity of the litigation and circumstances attending it) the tentative ruling is that this factor weighs in favor of settlement because it results in the immediate infusion of $15,000 cash into the estate and avoids the unnecessary costs, delay, and uncertainty attendant with litigation.
As to the fourth A&C Factor (best interest of creditors) the tentative ruling is that this factor weighs in favor of approving the settlement because this Court gives deference to the Trustee’s exercise of her business judgment in concluding that a settlement of $15,000 is likely the highest and best recovery the estate could achieve. Debtor’s contention that the Trustee’s decision to settle is self-serving and the fastest and simplest way to pay herself and her professionals is not persuasive (dkt. 153, p.3:1-2). In support of the settlement, the Trustee represents that "a significant portion of the
$15,000 will be used to pay the claims of creditors, including tax claims, regardless of whether any additional funds are recovered in the case and my professionals and I will cut our fees to make this happen" (dkt. 141, Dye Decl.. para 5, lines 16-18).
Therefore the A&C Factors support approving the settlement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Continue to 5/5/20 at 11:00 a.m. to address the following issues. Appearances are not required on 4/7/20. If you wish to dispute the tentative
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ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Service
Although this Court has discretion regarding who must be served with motions to approve proposed settlement (per Rule 2002(a)(3), Fed. R. Bankr. P.), the tentative ruling is that Debtor must be served, and this means serving both Debtor individually and Debtor's attorney ("double service"). See Rules 7004(b)(9)&(g) and 9014(a) (Fed. R. Bankr. P.). The proofs of service (dkt.
142, 143) do not reflect such double service.
The tentative ruling is that this Court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non-bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Sharyl Gwen Bloom Represented By Alan D Irwin
Movant(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
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Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20, 3/3/20, 03/31/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 15) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number 15).
Mediation: [Intentionally omitted]
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Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 11/20/20 deadline. Discovery cutoff (for completion of discovery): 12/8/20.
Expert(s) - deadline for reports: 12/15/20.
Expert(s) - discovery cutoff (if different from above): 12/29/20. Dispositive motions to be filed no later than: 1/26/21 - NOTE: per the
District Court's order (adv.dkt.15, Ex.1) any such motions are to be heard by the District Court.
Joint Status Report: 9/1/20
Continued status conference: 9/15/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: TBD NOTE: see immediately following paragraph below.
Pretrial conference: TBD NOTE: The District Court's order (referenced above) directs that this Bankruptcy Court address all pretrial proceedings (except dispositive motions) through the approval and entry of a pretrial order. This Bankruptcy Court interprets that direction to require supplemental proceedings before the District Court to address some issues that normally might be included in a pretrial order, such as the trial date, the format of exhibits preferred by District Court Judge Bernal, etc. The parties are directed to plan accordingly (e.g., addressing with the District Court what trial date should be included in any pretrial order).
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/31/20:
Continue to 5/5/20 at 11:00 a.m. pending a decision from the District Court on whether to withdraw the reference. See Joint status report, adv. dkt. 14. The parties are directed to file a joint status report by 4/21/20. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to
dispute the tentative ruling, or further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Continue to 3/31/20 at 11:00 a.m. pending a decision from the District Court on whether to withdraw the refence. See Joint status report, adv. dkt. 13.
The parties are directed to file a joint status report by 3/17/20. Appearances are not required on 3/3/20.
If appearances are not required at the start of this tentative ruling but you wish to
dispute the tentative ruling, or further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush Vanessa M Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
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Docket 171
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Movant(s):
Zeta Graff Represented By
Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Docket 172
Continue to 6/30/20 at 11:00 a.m. to address the following issues.
Appearances are not required on 5/5/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Background
Debtor filed her Objection to Claim to Pensco Trust Company's ("Pensco") POC 5-1 on 3/29/20 (the "Claim Objection," dkt. 172). Pensco filed its opposition on 4/21/20 (dkt. 186), which included within it a Counter Motion To Compel Dispute To Arbitration. Debtor filed her reply on 4/28/20.
Analysis
Counter Motion To Compel Dispute To Arbitration is not properly before this Court and must be separately noticed and filed
As pointed out by Debtor in her reply (dkt. 186, p.4:22-25), the Counter Motion To Compel Dispute To Arbitration is not properly before this Court and will not be considered by this Court because any such motion should be separately noticed and filed.
Whether the parties' dispute should be sent to arbitration is a gating issue and this Court requires further briefing
The arbitration provision provides that "in the event of any legal
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dispute, all parties agree to submit to the final decision of Arbitration which decision may be entered in any court of competent jurisdiction." Dkt. 172, Ex. A, PDF p. 26, para. 6. But, although the term "Arbitration" is capitalized, there does not appear to be any definition of that term.
In the portion of its opposition that is properly before this Court, Pensco reserves its "claim that initial determination of the within dispute is subject to mandatory arbitration as agreed to by the parties in the loan documents." Dkt. 186, p.2:4-6 (emphasis added). In her reply, Debtor argues that the Court has jurisdiction over the Claim Objection because an objection to claim is a core proceeding per 28 U.S.C. Section 157(b)(2)(A), (B), and (O). Dkt. 191, p.4:26-28. Debtor also argues that the arbitration claim "is extremely vague and ambiguous, therefore unenforceable," explaining that "Arbitration" is not defined, Debtor's signature on the document that includes the arbitration provision is not dated, and that the rider to the promissory note which includes the arbitration provision is not listed as one of the loan documents in Ex. E to the opposition. Id. at pp.4:28-5:6. Lastly, Debtor cites In re Thorpe Insulation Co., 671 F.3d 1011, 1021 (9th Cir. 2012) for the proposition that resolution of a proof of claim involving a breach of contract subject to an arbitration clause is a core proceeding. Id. at p.5:7-10.
First, Debtor has not provided any citations to legal authority
establishing that her referenced issues with the arbitration provision and the document in which its included render the arbitration provision unenforceable. For example, there are other portions of the loan documents that include Debtor's signature that are not dated. See dkt. 172, PDF pp. 22, 30, 35, 45. Is Debtor arguing that the failure to date her signature renders the loan documents unenforceable? As another example, when Debtor says that the arbitration provision is "extremely vague and ambiguous," is she arguing that the arbirtration provision is unclear as to whether it applies to the current dispute, or that the actual terms of any arbitration are unclear?
Second, while Debtor is correct that resolution of a proof of claim is a core proceeding, that is not the end of the inquiry. In Thorpe, the United States Court of Appeals for the Ninth Circuit ("9th Circuit") held that
... even in a core proceeding, the McMahon standard must be met - that is, a bankruptcy court has discretion to decline to enforce an otherwise applicable arbitration provision only if arbitration would conflict with the underlying purposes of the
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Bankruptcy Code. [Thorpe, 671 F.3d 1011, 1021 (emphasis added)]
Debtor has not provided this Court with any briefing addressing the
above referenced standard.
Third, this Court has reviewed the POC 5-1 and has not been able to locate where "Arbitration" is defined. Pensco has not provided this Court with any documentation defining "Arbitration," or otherwise outlining the terms of the parties' potential arbitration. Does Pensco have any such documents in its possession?
Conclusion
For the reasons set forth above, the tentative ruling is to continue the hearing on this matter to the date and time set forth at the start of this tentative ruling. Pensco is directed to file and serve a separate arbitration motion and supporting declaration(s) no later than 5/12/20. Debtor is directed to file and serve her opposition papers no later than 6/9/20. Pensco is directed to file its reply no later than 6/23/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Docket 170
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Adv#: 2:19-01491 Lee v. Hsu
fr. 1/28/20, 03/31/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances required. See the tentative ruling for calendar no.13.
Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
After the 1/28/20 status conference, this Court issued its Order Directing The Parties To Mediation And Setting A Continued Status Conference (the "Scheduling Order," adv. dkt. 4). The Scheduling Order directed the parties to this adversary proceeding to lodge a proposed mediation order on the local form no later than 2/11/20.
On 2/18/20, this Court held a status conference in the related adversary proceeding of Yiping Zhu v. Shih Lin Hsu (2:19-ap-01511-NB, the "Zhu Adversary"). At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his
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inquiries re selecting a mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," Zhu Adversary, adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Zhu Adversary, adv. dkt. 4, p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required.
Preliminary issues
(1) Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a)
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venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A
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Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Diana C Lee Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01499 Kok v. Hsu
fr. 1/28/20, 03/31/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances required. See the tentative ruling for calendar no.13.
Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
After the 1/28/20 status conference, this Court issued its Order Directing The Parties To Mediation And Setting A Continued Status Conference (the "Scheduling Order," adv. dkt. 7). The Scheduling Order directed the parties to this adversary proceeding to lodge a proposed mediation order on the local form no later than 2/11/20.
On 2/18/20, this Court held a status conference in the related adversary proceeding of Yiping Zhu v. Shih Lin Hsu (2:19-ap-01511-NB, the "Zhu Adversary"). At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his
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inquiries re selecting a mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," Zhu Adversary, adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Zhu Adversary, adv. dkt. 4, p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required.
Preliminary issues
Status report
The summons issued in this case (adv. dkt. 2) directed the parties to file a joint status report by 1/14/20. As of the drafting of this tentative ruling, no status report has been filed. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a)
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venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/11/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 11/27/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/17/20
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A
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Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
Defendant(s):
Shin Lin Hsu Pro Se
Plaintiff(s):
Ching Chen Kok Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
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Adv#: 2:19-01511 Zhu v. Hsu
Breach of Fiduciary Duty fr. 02/18/20, 03/31/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Lack of prosecution
At the hearing on 3/31/20 appearances were excused. Plaintiff appeared and Defendant did not. Plaintiff admitted that no notice was given to Defendant of an intent to contest the tentative ruling. Nevertheless, consistent with the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) and as explained in this Court's order (adv.dkt.6) this Court was persuaded not to dismiss this adversary proceeding for lack of prosecution, and instead once again directed the parties to mediation. See adv.dkt.8.
Mediation
The parties are direct to address the status of their mediation efforts.
Standard requirements
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The following are Judge Bason's standard requirements for status
conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (at the prior hearing(s) listed below).
Mediation [intentionally omitted because the parties have already been directed to attend mediation, see adv. dkt. 4, 6, 8]
Deadlines: This adversary proceeding has been pending since 12/16/19.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 6/2/20
Continued status conference: 6/16/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/31/20:
The tentative ruling is to dismiss this adversary proceeding for lack of prosecution. Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID-19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
On 2/18/20, this Court held a status conference in this adversary proceeding. At that status conference, Debtor represented to this Court that the plaintiffs in the related adversary proceedings did not respond to his inquiries re selecting mediator. After the status conference, this Court issued its Order Directing Parties To Lodge Mediation Order(s) And Continuing Status Conference (the "Zhu Scheduling Order," adv. dkt. 4). The Zhu Scheduling Order was served on Debtor/Defendant, and Plaintiffs Diana Lee, Yiping Zhu, and Ching Chen Kok. The Zhu Scheduling Order reiterated that mediation of the three related adversary proceedings was mandatory, and failure to lodge the required mediation orders by 2/25/20 and attend mediation could "result in sanctions or other remedies." Adv. dkt. 4,
p.2:12-13.
As of the drafting of this tentative ruling, no mediation orders have been lodged in any of the three related adversary proceedings. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
Appearances required.
Preliminary issues
Status report
This Court issued a summons which required the parties to file a joint status report at least 14 days before the hearing, or by 2/4/20. Adv. dkt. 2,
p.2. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Standard issues
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 2/25/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to
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find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 12/16/19.
Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 3/31/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shih Lin Hsu Represented By
Rajiv Jain
11:00 AM
Defendant(s):
Shih Lin Hsu Pro Se
Plaintiff(s):
Yiping Zhu Pro Se
Trustee(s):
John P Pringle (TR) Pro Se
1:00 PM
Docket 25
Please see the tentative ruling for the status conference (Calendar no. 2, 5/5/20 at 1:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
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Docket 6
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral & budget motions
Debtor’s counsel confirms that there is a tenant in Debtor’s rental property who is paying $11,000/month in rent (dkt. 39, p.1:22-2:3 & Ex.A) and that Debtor is now living with her son and contributing towards general household expenses (dkt. 47, p.2:9-15). Debtor should be prepared to address whether a cash collateral motion is necessary, in view of her receipt of rental income.
The tentative ruling is no later than 5/11/20 Debtor must file and serve
a cash collateral motion, if one is required, (b) a budget motion as required by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), and (c) an amended schedule G identifying the lease.
Amended Bankruptcy Schedule I remains deficient (dkt. 60) Debtor's Amended Bankruptcy Schedule I still lists rental income in line
8h, instead of line 8a, and Debtor has not complied with the 4/10/20 deadline
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this Court previously set for Debtor to attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income (as expressly required by line 8a) – e.g. mortgage payments, real property taxes, insurance, maintenance. This Court notes that Amended Bankruptcy Schedule J does include an attachment that lists certain property expenses, but this is not sufficient.
The tentative ruling is that Debtor is directed to file an amended Bankruptcy Schedule I no later than 5/11/20.
March Monthly Operating Report ("MOR") (dkt. 55)
Debtor’s March MOR does not appear to accurately reflect Debtor’s monthly income and expenses for the period from 3/9/20 to 3/31/20 or otherwise explain why more information could not provided. The tentative ruling is that Debtor is directed to file an amended March MOR no later than 5/11/20.
Application to employ special litigation counsel (dkt. 25), UST’s objection (dkt. 28), amended application (dkt. 29), notice of hearing (dkt. 40), declaration (dkt.47), no opposition to amended application is on file
This Bankruptcy Court continues to have serious doubts whether an objective cost/benefit analysis would justify hiring counsel at $795.00/hr. to pursue the claims described in the amended application and other papers. From what this Bankruptcy Court knows of the litigation, this Court is inclined to share some of the principal defendant's bewilderment:
USB is bewildered at Debtor’s endgame here. [T]he Debtor is
attempting to procure the Property without having to pay back the loan that she admits to receiving. It is not as if USB recorded a deed of trust on the Debtor’s Property by mistake and the loan proceeds went to another property owner. It is sad to see that the
Debtor has spent hundreds of thousands of dollars on [this litigation]. [Dkt.79, p.9:23-28, n.4]
Nevertheless, (i) it appears that unsecured creditors have nothing to lose: either the litigation will succeed and they will have some hope of recovery, or it will fail and they will not be any any worse situation - they will receive the same as if the litigation were not pursued: nothing (see dkt.47); (ii) despite notice to creditors (dkt.40) no objection to the amended application has been received; (iii) there may be aspects of the litigation that this
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Bankruptcy Court does not understand; and (iv) perhaps Debtor is gaining some benefit by deferring any ultimate adverse judgment and/or the possibility of any ultimately favorable judgment or settlement. Therefore the tentative ruling is to grant the amended application, subject to the standard employment provisions in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), and further subject to a deadline of 5/11/12 for Debtor's general bankruptcy counsel to file a declaration confirming that counsel has delivered a copy of this tentative ruling to Debtor, so that she is fully informed of this Court's concerns.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/12/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required by counsel for the debtor and by the debtor themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission.
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Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Lack of prosecution of this case
Debtor's status report suggests that no budget motion is required, despite the fact that the posted Procedures of Judge Bason require one (see www.cacb.uscourts.gov under Judges). Debtor explains that "[n]o rents have been collected and we don't know if the tenant is going to pay" and "[e] xpenses are minimal and go to upkeep." Dkt.27, p.3, item B.2.
If the tenant is not paying rents, why do the Status Report and the docket not reflect efforts to evict the tenant and/or collect the rent? In addition, if there is a tenant, why does the Status Report state (dkt.27, p.7) that there are no leases? If there is no written lease, and the tenancy is month-to-month, that should have been explained, and it would seem to be all the more reason why the tenant promptly should either pay rents or be evicted. It has already been nearly a month since the petition date of 3/9/20, with no apparent action.
The tentative ruling is to set a deadline of 4/10/20 for Debtor to file a declaration addressing the foregoing issues.
Schedules I and J are deficient (dkt. 17)
Debtor's Schedule I identifies $11,000 in monthly rental income from the Robin Drive property, but Debtor did not attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income (as expressly required by line 8a) - e.g. mortgage payments, real property taxes, insurance, maintenance. Even if those things are not currently being collected/paid, the form directs Debtor to state whether there is any anticipated change in future, and the tentative ruling is to direct Debtor to set forth in detail her projections for all of these things.
Additionally, Debtor's Amended Schedule J is virtually blank. Debtor explains that all of Debtor's expenses are being paid by Medicare, but (a) Debtor does not identify any medicare income on Schedule I and (b) that still does not explain the failure to list whatever expenses are being paid on Debtor's behalf.
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The tentative ruling is that Debtor is directed to file amended schedules I and J no later than 4/10/20.
Schedule D (dkt.17, at PDF pp.21-22)
Debtor apparently assumes that she has a 100% chance of succeess in her nonbankruptcy litigation, because she asserts that there are no liens at all on her Robin Drive property. The tentative ruling is that this is flagrantly contrary to Debtor's obligation to list all claims, even if those claims are disputed (or contingent, or unliquidated). The tentative ruling is to set a deadline of 4/10/20 for Debtor to file an amended Schedule D listing the disputed lien and its dollar amount.
Proposed special counsel, and cost/benefit analysis
The tentative ruling is to set for hearing Debtor's application to employ special counsel, the objection thereto, and the amended application (see dkt. 26, 28, 29). The tentative hearing date is concurrent with the continued status conference (see part "(2)" below).
As this Court understands the pending nonbankruptcy litigation, several actions have been designated as "related" by the State Court(s), and there is a pending appeal that is set for oral argument later this month. The principal issue appears to be whether a mortgagee's deed of trust, that at least initially had an incorrect and/or missing property description, was sufficient to create (a) a lien as against Debtor and (b) inquiry or other effective notice as against third parties, when it is undisputed that the deed of trust was recorded in the real estate records, and when presumably it was included in the grantor/grantee index under Debtor's name. It appears that the trial court(s) have ruled against Debtor.
With this background, this Court reminds Debtor and her general bankruptcy counsel that, given Debtor's duties as a trustee for the benefit of creditors, she has an obligation to make a cost/benefit analysis regarding the litigation, and also has a duty to monitor proposed special counsel. This Court notes that proposed special counsel is not disinterested - she has a substantial prepetition claim - and although there is no requirement in 11
U.S.C. 327(e) of disinterestedness, there is still a requirement that proposed special counsel not "hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed."
In addition, this Court takes judicial notice that, depending on the facts
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(which are unknown to this Court), sometimes debtors have nothing to lose by pursuing "long shot" litigation, but creditors have everything to lose. For example, a hypothetical debtor might have little or nothing to lose if they are already insolvent, because either the value of their property will go to pay the secured creditor(s), or it will go to pay unsecured creditors, so they have no net financial loss either way; but if the long shot litigation pays off they can keep their home. This Court emphasizes that this is only one scenario, and this case might be very different. But there is not enough information in the record at present for creditors to be able to make an informed decision whether or not Debtor has financial incentives to act in their best interests.
The tentative ruling is to set a deadline of 4/10/20 for Debtor to file, and serve on all parties in interest including the United States Trustee via
U.S. mail, a notice of the hearing on the employment application, which notice must include a copy of this tentative ruling, and must provide notice of a deadline of 4/21/20 for any response, and 4/28/20 for any reply. In addition, the tentative ruling is that, concurrent with the notice, Debtor must file and serve declaration(s) addressing the foregoing issues.
Debtor's emergency motion for order confirming that stay applies to pre-petition state court litigation (dkt. 30, the "Stay Motion"), application for hearing on shortened time (dkt. 31) and order thereon (dkt. 32)
There is no tentative ruling. The parties should be prepared to address the issues raised in the tentative ruling for the Stay Motion (Calendar no. 1.1, 4/7/20 at 1:00 p.m.).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/5/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
1:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
1:00 PM
Docket 131
NONE LISTED -
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
1:00 PM
11/12/19, 12/10/19, 1/28/20, 3/3/20
Docket 7
Tentative Ruling for 5/5/20:
Continue to 5/12/20 at 1:00 p.m., concurrent with other matters. Appearances are not required on 5/5/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required.
Current Issues
Debtors' disclosure statement (dkt. 131) and chapter 11 plan (dkt.
132)
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Insufficient cash for effective date payments
Debtors' Cash Flow Projections (dkt. 131, Ex. C) reflect that Debtors'
plan will be immediately infeasible and result in negative cash of ($7,138).
Extraneous pages
Debtor should delete extraneous pages. See Plan, dkt.130, Ex.A & Ex.A1, Continuation Sheets, at PDF pp.10 & 13, and Disclosure Statement, dkt.131, Ex.C2 and C3, at PDF pp.12&13; Ex.E, at PDF pp.18-22; Ex.F at PDF p.26; .
Mailing voting package?
Debtor is directed to address whether it is appropriate at this time to set a deadline (e.g., 3/9/20) for (A) filing a manually "blacklined" plan addressing the above issues and (B) lodging a proposed order authorizing the service of a voting package (in the form posted on Judge Bason's portion of the Court's website, www.cacb.uscourts.gov), with such proposed order authoring Debtor to serve the voting package (the Plan, Disclosure Statement, Ballot, and the approved order) setting a combined hearing soon (e.g., contemporaneous with the continued status conference date set forth below) on final approval of the Disclosure Statement and confirmation of the Plan. Among other things, this issue includes whether Debtor anticipates any objections to confirmation of the Plan and, if so, whether it makes sense to incur the time, expense, and possible confusion of copying and mailing the voting package now, or whether Debtor should attempt first to resolve anticipated objections.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: see above.
Continued status conference: 5/5/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances are not required on 1/28/20.
Current Issues
Now that the settlement with Mazakoda, Inc. has been approved (see dkt. 126, and see calendar no. 15, 1/28/20 at 1:00 p.m.), it appears appropriate to move forward with a proposed Plan and Disclosure Statement, as set forth below, and continue this status conference to a date after those documents are filed. This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan/Disclosure Statement*: file by 1/31/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/3/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
1:00 PM
fr. 12/10/19, 1/14/20, 2/18/20, 03/31/20
Docket 125
NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
1:00 PM
fr. 10/29/19, 11/5/19, 12/17/19, 1/28/20, 03/31/20
Docket 51
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 7, 5/5/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 15, 3/31/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Continued hearing on interim collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113), Hanmi's supplemental statement (dkt. 104)
There is no tentative ruling. The parties should be prepared to address whether Hanmi will consent to further use of its cash collateral.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 8/14/20 (dkt. 78)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 1:00 p.m., Brief written status report due 6/30/20.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 99
NONE LISTED -
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 02/18/20, 03/31/20
Docket 55
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 10, 5/5/20 at 1:00 p.m.)
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 18, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 9, 2/18/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 5/5/20:
Appearances required by counsel for Debtor and Aztec.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's amended cash collateral motion (dkt. 55), opposition of Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") (dkt. 70, 86 & 88), Debtor's reply (dkt. 90), and Debtor's supplemental declaration with appraisal (dkt. 129, 131)
Aztec values the 69th Way property at $860,000 "as is" as of 2/23/20.
Dkt. 88, p.2:2-3, dkt. 91. Debtor values the property "as is" between
$925,000 and $950,000 depending on which valuation approach is used. Dkt. 129, PDF p.47.
As set forth in this Court's Revised Tentative Ruling for 3/31/20, the parties should address how they propose to resolve their dispute regarding the value of the property - e.g., (i) with an evidentiary hearing; (ii) with a ruling of this Court based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as this Court's own expert under FRE 706.
The tentative ruling is to grant the cash collateral motion on a further
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interim basis, on the same terms as this Court's previous interim order (dkt. 80), and to set a continued hearing for the same date and time as the continued status conference as set forth below.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Order To Show Cause re dismissal etc. (the "OSC," dkt. 95), Debtor's response (dkt. 101), response of United States Trustee ("UST") (dkt. 112), and Debtor's supplemental declarations (dkt. 129, 131)
The parties are directed to address whether Debtor has adequately addressed the UST's and this Court's concerns.
Debtor's Plan (dkt. 124), Disclosure Statement (dkt. 125), and request for preliminary hearing (dkt. 128)
Debtor's attempt to stop the running of default interest by proposing a Plan appears to be sensible. Debtor must correct the following issues before the Plan and related documents can be served.
Stop serving creditors - until authorized
Debtor may have confused creditors by sending them the notice. In general, a debtor is not supposed to serve all parties in interest with any disclosure-statement-related documents (before a disclosure statement is approved). See 11 U.S.C. 1125(b) and Rules 2002(b) & 3017(a) (Fed. R. Bankr. P.). In addition, as set forth in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) (the "Procedures"), the required procedure is for this Court to conduct a preliminary review at a status conference, conditionally approve the disclosure statement, and only then direct service on all parties in interest, as authorizied by 11 U.S.C. 105(d)(2) (vi). In future, counsel is directed to follow the Procedures.
Class 1A
This class is listed as unimpaired, but the proposal is to pay this claim over time. The class should be listed as impaired.
Proposed treatment of LA County Tax (Class 2D)
Debtor's Plan proposes to pay Rehabers' and LA County Tax's claims re the Shadow Lane property by surrendering the property. Dkt. 125, pp.14 &
22. The tentative ruling is that this treatement is adequately disclosed.
Exhibit C: income/expenses
The tentative ruling is that Exhibits C through C4 are confusing, and
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need to be replaced. Exhibit C, lines 5a and 5b should refer to Exhibit "1" (dkt.125 at PDF p.23), and that Exhibit "1" should be revised so that instead of just listing "Personal Net Employment Income" (id., emphasis added), Debtor must reveal gross employment income and all deductions to arrive at the net income.
Extra blank sheets
The Disclosure Statement, Exhibits E and F, include extra blank pages that appear unnecessary. See dkt. 125, pp. 15-17; pp. 19-20.
Combined hearing on Plan/Disclosure Statement
The tentative ruling is to direct Debtor, no later than 5/11/20 to correct the foregoing issues and lodge a proposed order, in the form provided on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same date as the continued status conference (see below). The tentative ruling is that this shortened time is appropriate in view of the need to stop the running of default interest.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 6/16/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED
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until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Motion In Individual Case For Order Authorizing Debtor In Possession To Employ Profession (Other Than General Bankruptcy Counsel) (the "Appraiser Employment Motion," dkt. 109)
Debtor should be prepared to address the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 113).
Other issues
This Court's concerns raised prior to and at the hearing on 3/31/20 continue to be seriously troubling, but those issues will be addressed at future hearings.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 5/5/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Despite repeated inquiries from this Court, the docket does not appear to reflect adequate prosecution of this case. To the contrary, the docket and records of this Court appear to reflect considerable mismanagement, lack of disclosure, and other problems set forth below.
Rental income, and disposition or use of various properties
At the hearing on 2/18/20 Debtor belatedly clarified that the second cash collateral motion (dkt.55) was meant to amend the first such motion, and that only one property currently is generating rents - the 69th Way property - although perhaps a second property generates some rents that are not anyone's cash collateral (as noted below). As for Debtor's properties other than 69th Way, Debtor apparently intends to sell the Shadow Ln. property (dkt.89), and it is unclear what Debtor intends to do with the 68th Way property, the Anderson St. property, and the 132d St. property, which appear to be generating minimal if any rental income. See, e.g., Status Report (dkt.69) (listing properties, but not addressing Debtor's intent regarding any of them).
The latest MOR (#4, for Feb. 2020) is unclear about which rental account relates to which property. But it appears that, apart from 69th Way, only one other property has an ending balance above $0, and that is minimal (this unspecified property is the other one that appears to generate some rent, that apparently is not anyone's cash collateral, although that is unclear).
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See dkt.85, p.18.
In addition, it appears that Debtor's actual rent rolls might differ from what has been disclosed to date. See dkt.86, p.5:11-15, and supporting decl.
With this background, this Court's primary concern is why the docket does not reflect steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties (other than Shadow Ln.)? This Court's secondary concern is to obtain much more complete and clear information and explanations regarding Debtor's various properties.
Debtor's lack of disclosure to date only encourages this Court to impose more comprehensive disclosure requirements, or possibly other remedies. If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) the tentative ruling is to set a deadline of 4/7/20 for Debtor to file and serve on Aztec and the United States Trustee ("UST") a declaration specifying:
exactly what is the current condition of each property;
how much each apartment or room in that property (a "Unit") has been rented for at all prepetition times back to 1/1/17;
how much each Unit has been rented for at all postpetition times, and whether each Unit has been used or occupied by any relative or other affiliate of Debtor at any times postpetition;
Debtor's projections for each Unit, including the timing and dollar amount of all future rents;
Debtor's proposed disposition of each property;
all steps that Debtor has taken since the commencement of this case to accomplish that disposition; and
the projected timeline for such disposition.
Debtor's amended cash collateral motion (dkt. 55), opposition of Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") (dkt. 70, 86 & 88), and Debtor's reply (dkt. 90)
Aztec values the property at $860,000 "as is" as of 2/23/20. Dkt. 88, p.2:2-3, dkt.91. Debtor requests time to obtain a competing appraisal. Dkt. 90, p.2:13. Why did Debtor not do this already?
If there is a satisfactory answer, and if Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to grant the cash collateral motion on a further interim basis, on the same terms as this Court's previous interim order (dkt. 80), and to set a
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continued hearing for the same date and time as the continued status conference as set forth below with a deadline of 4/25/20 for Debtor's appraisal to be filed and served on Aztec.
At the continued hearing the parties should address how they propose to resolve their dispute regarding the value of the property - e.g., (i) with an evidentiary hearing; (ii) with a ruling of this Court based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as this Court's own expert under FRE 706.
February MOR (dkt. 85)
Insurance
This MOR (dkt. 85, p.17) shows general liability insurance is due to expire/only paid through 1/25/20. Has that insurance been extended?
This is the same problem that occurred and has been pointed out before. Why is this problem continuing?
This Court fully understands that the insurance is month-to-month, according to Debtor's counsel. But that is no excuse. By the due date of each MOR is should be apparent whether the insurance has or has not been continued, so why do the MORs continue to suggest - apparently inaccurately - that the insurance has expired? Alternatively, if the insurance really has expired, what consequence should follow?
Even if Debtor is (barely) current on insurance, this Court questions whether there is a danger every month that the insurance will expire, if the insurance is only month-to-month. How is Aztec, the bankruptcy estate, or the public adequately protected?
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to set a deadline of 4/7/20 for Debtor to file, and serve on Aztec and the UST, a declaration fully addressing the foregoing insurance issues.
No blocked account
Aztec's supplemental opposition (dkt. 86, p.9:1-9) states that Debtor's MOR appears to reflect that there is no separate blocked account for Aztec's cash collateral, as was required by this Court's interim order (see dkt. 80, p.3). The rental DIP account ending in 2707 appears to be related to Aztec's property based on the $5,390.00 of receipts for February (dkt. 85, p.5), and Debtor's representation at the last hearing that the 69th Way property is the
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only property generating rents at this time. Debtor's reply states that he has complied with this Court's order "by setting aside one of debtor in possession accounts as an escrow account for the remaining portion of the rents." Dkt. 90, 4:1-2.
One problem, as noted above, is that it is not clear which account Debtor is referring to (the one ending in 2707?). Another problem is that the MOR appears to show rental income going into that account but does not appear to show payments of "real estate taxes," "utilities," and "essential repairs" out of that account (only insurance appears to have been paid out of that account). See dkt.85, p.6. It appears that utilities, for example, have been paid from the general account. See dkt.85, pp.1-3. This creates a falsely inflated balance in that account.
More importantly, Debtor appears to misunderstand the nature of a "blocked account." In common usage, and as used by this Court, it means an account from which funds cannot be released without either (i) consent of the other party asserting an interest in the account (Aztec) or (ii) an order of this Court. See, e.g., In re Estrada, 224 B.R. 132, 134 (Bankr. S.D. Cal. 1988) (referring to a "blocked account, requiring both the [chapter 7] trustee's and the Debtor's signature for any disbursements").
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below) then, no later than 4/7/20, Debtor is directed to accomplish all of the following:
coordinate with Aztec and Debtor's bank to determine the mechanics of how checks will be signed by both Debtor and Aztec so as to pay utilities etc. (or whether automatic payments will be set up);
actually set up the blocked account and implement those procedures; and
file and serve on Aztec and the UST a declaration confirming that the blocked account has been established and those procedures have been implemented.
Belated application to employ special counsel (dkt. 57, filed 1/17/20), who has not been approved but has already filed an adversary proceeding (Lora v. Rehabbers Fin., Inc. dba Aztec Fin., et al., Adv. No. 2:20- ap-01067-NB)
The bankruptcy petition was filed on 11/11/19. Over two months later, on 1/17/20, Debtor belatedly filed an application to employ special counsel.
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That proposed special counsel apparently represented Debtor in
prepetition litigation in State Court (LA Superior Court, Case No. 19LBCV00600, for fraud, quiet title, etc.). Dkt.57, p.5. There is no meaningful description of that litigation in the application, nor does the application say anything about commencing a separate adversary proceeding in this bankruptcy case, as the (still unauthorized) special counsel has done on 3/20/20 (dkt.87).
As set forth in prior tentative rulings, reproduced below (for 2/18/20, item "(1)(c)," and 1/14/20, item "(1)(c)"), this Court is very concerned that Debtor is gambling any possible recovery for creditors on the possibility of prevailing in litigation against Aztec. That litigation should have been fully described in Debtor's initial status report and any later reports (dkt. 30, 69), and also should have been fully described in the (very belated) application to employ proposed special counsel (dkt.57). Instead, the nature of that litigation has only been incompletely and belatedly disclosed in those documents (see, e.g., dkt.30 at PDF p.3, and dkt.57, p.5), and orally at prior status conferences.
As near as this Court can tell, based on those sources and this Court's review of the Complaint (Adv. dkt. 1), Debtor's claims are as follows. Debtor apparently is attempting to reduce or eliminate the principal and/or interest, including default interest, on Aztec's secured claim collateralized by the 69th Way and Shadow Ln. properties. Although Debtor admits receiving the loan proceeds, and using some or all of the proceeds to purchase the Shadow Ln property, Debtor allegedly attempted to cancel both the purchase and the loan on or about 6/8/18. Id., para.16 & Ex.C at PDF pp.4 & 107-08. But then on or about 6/11/18 Debtor and his wife allegedly were pressured and intimidated into executing various documents that they did not understand that reauthorized the transaction, including cross-collateralization (id., para.17), and their signatures allegedly were forged on a closing statement listing various high transaction costs (id., para.18, 26). Debtor's Complaint appears to assert claims for fraud, usury, a determination that some or all of these transactions are void and unenforceable, and damages of an unspecified nature up to or in excess of $1 million. It is unclear how much this adversary proceeding duplicates or is different from the State Court litigation.
This Court expresses no view on the merits of these two actions (in
State Court, and in the adversary proceeding in this Bankruptcy Court). The
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point is only that pursuing such litigation is all very well for this bankruptcy estate if Debtor prevails, but Debtor has a duty, as a debtor in possession acting as a trustee for the benefit of creditors (11 U.S.C. 1101(1), 1106, 1107), to consider a cost/benefit analysis of the litigation, and how to minimize the "down side" risk if Debtor does not prevail.
As this Court has noted previously, the default rate of interest (and even the non-default rate) are large enough that they may eat up any assets of this estate if they continue to accrue and are not disallowed. This Court previously has questioned why Debtor has not been pursuing avenues that might possibly stop the accrual of such interest.
Such avenues conceivably could include such tactics as:
selling the 69th Way and/or Shadow Ln. properties free and clear of liens with Aztec's liens to attach to the proceeds of sale (11 U.S.C. 363(b)&(f));
selling those properties with the net proceeds being paid over to Aztec subject to claims to recover those proceeds;
pursuing confirmation of a chapter 11 plan that pays Aztec over time with a new (much reduced) interest rate; or
some other tactic.
To be clear, this Court expresses no view whether those things actually would work to stop the running of default interest - this Court is not pre- judging any legal or factual issues. The point is only that only last week, on 3/23/20, did Debtor finally appear to take some preliminary steps to possibly addressing this issue, by filing an application (dkt.89) to employ a real estate broker to sell the Shadow Ln. property. Now, with the possible effects of the COVID-19 pandemic on the real estate market, it appears that this is too little, too late.
Meanwhile, Debtor does not appear to have taken any steps to obtain approval for the employment of special counsel, such as setting the matter for hearing or lodging a proposed order. It is also unclear what, if anything, is happening in the pending State Court litigation - is Debtor taking whatever steps are necessary to preserve whatever value that litigation has for the estate?
If Debtor remains a debtor in possession (see part "(1)(e)" of this tentative ruling, below), the tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor
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to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this part "(1)(d)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Whether this case should be converted or dismissed, or whether a trustee should be appointed, or other relief
Based on the matters described above, and the history of this case as described in the prior tentative rulings reproduced below, this Court questions:
whether Debtor is grossly mismanaging this bankruptcy estate (sub-paragraph "(B)" of 11 U.S.C. 1104(a)(1), 1112(b)(4)) by:
not taking appropriate steps to surrender, rent, sell, rehabilitate, or otherwise deal with Debtor's properties;
not adequately disclosing the past, present, and projected condition, rents, and proposed disposition of those properties;
not maintaining and/or timely disclosing adequate
insurance;
not maintaining a blocked account for cash collateral
as order by this Court;
not seeking authorization for the employment of special counsel to prosecute litigation against secured creditor Aztec until over two months after the commencement of this case;
not requesting adequate authorization for that proposed special counsel: the application seeks authorization for him to prosecute the State Court litigation against Aztec, but not any litigation in this Bankruptcy Court with Aztec;
failing to monitor and coordinate with such special counsel, as illustrated by (x) such proposed counsel's filing of an adversary proceeding against Aztec on behalf of this bankruptcy estate before such special counsel is authorized to represent this estate, and (y) the apparent lack of attention to the State Court litigation against Aztec; and
perhaps most importantly, not taking any steps to stop the running of the high rates of Aztec's claimed interest, despite repeated questioning by this Court why no such steps have been taken, until the application to employ a real estate broker on 3/23/20, which appears to be too little, too late;
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whether Debtor is failing to maintain appropriate insurance
that posses a risk to the state or to the public (sub-paragraph "(C)" of section 1112(b)(4));
whether Debtor has engaged in the unauthorized use of cash collateral substantially harmful to Aztec, or has failed to comply with this Court's order regarding the use of cash collateral and establishment of a blocked account (id., sub-paragraphs "(D)" and "(E)");
whether Debtor is failing, without excuse, to satisfy timely the filing or reporting requirements established by the Bankruptcy Code and Rules or reasonably requested by the United States Trustee regarding the filing of MORs and maintenance of insurance (id., sub-paragraphs "(F)" & "(H)"); or
whether there is other "cause" for conversion, dismissal, or appointment of a chapter 11 trustee (11 U.S.C. 1104(a), 1112(b)(1)), or any other remedy for the foregoing deficiencies.
Debtor is directed to address these issues at this status conference.
See Procedures Order (dkt.8, 29) (notice and order that this Court may consider case-dispositve matters at any status conference).
If this Court is persuaded not to convert or dismiss this case or impose other remedies at this hearing, the tentative ruling is to issue an oral Order to Show Cause ("OSC") why this case should not be converted or dismissed, or why a trustee should not be appointed, or other remedies imposed, and set that OSC for hearing concurrent with the continued status conference (see part "(2)" of this tentative ruling, below) with a deadline of 4/7/20 for Debtor to serve all parties in interest with a notice of that hearing, with a deadline of 4/21/20 for any opposition, and 4/28/20 for any reply, and with a copy of this part "(1)(e)" of this tentative ruling for 3/31/20 attached to that notice, and with declaration(s) attached to that notice addressing the issues set forth above.
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 5/5/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
This Court anticipates posting a tentative ruling at a later time.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
First cash collateral motion (dkt.31&32) and second cash collateral motion (dkt. 55&56)
Applicable motion(s)?
At the 1/14/20 hearing, Debtor was directed to re-serve the first cash collateral motion no later than 1/16/20 (see also Tentative Ruling for 1/14/20, reproduced below). Instead, Debtor filed and served the second cash collateral motion, which differs materially from the first cash collateral motion.
It appears that Debtor still may be seeking authorization under the first motion as to two properties (68th Way and Shadow Ln) and authorization under the second motion as to a third property (69th Way). Is that accurate? If not, what is Debtor attempting to do?
Service issues
At the 1/14/20 hearing, this Court noted that the first cash collateral motion was not served in compliance with Rule 7004 (Fed. R. Bankr. P.), and Debtor was directed to reserve that motion no later than 1/16/20. Debtor served the second cash collateral motion instead, and did so on 1/17/20. Dkt. 56.
It appears that Debtor has still not complied with Rule 7004. First, Nationstar Mortgage, LLC dba Mr. Cooper was not served at the address
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listed on POC No. 4 for notices. Second, CitiMortgage, Inc. filed POC No. 5 alleging a security interest in the 68th Way property, and it was not served with either cash collateral motion.
Allegedly fraudulent liens
As noted in Debtor's status report, Debtor is (belatedly) seeking authorization for the postpetition employment of special counsel to pursue an action in state court for fraud and quiet title with respect to allegedly fraudulent liens encumbering the 69th Way and Shadow Lane properties.
Dkt. 57 & 69, p.3:2-4. Debtor has stated an intention to sell the Shadow Lane property but not the 69th Way property. What cost/benefit analysis have Debtor and Debtor's bankruptcy counsel done regarding this litigation?
The holder of the alleged liens appears to be asserting 21% default interest (and a non-default rate of just under 10%) (see dkt.70, p.5:1-6). Of course, all rights are preserved to argue regarding interest rates, but Debtor appears to be gambling on winning the litigation and avoiding the liens and the default interest entirely. In other words, if Debtor is not 100% successful, there appears to be a substantial danger of wiping out any recovery for other creditors and Debtor. Why is Debtor not proposing a course of action that might stop the running of such high rates of interest?
For example, solely for purposes of this tentative ruling this Court presumes (without deciding) that selling the 69th Way property free and clear of the disputed liens, with such liens to attach the proceeds, might stop the running of such interest rates. Alternatively, Debtor might propose a chapter 11 plan that could include alternative treatments of this claim depending on whether the ligitation were or were not successful, and restructuring any secured claims to have a lower interest rate. These are only hypotheticals: again, all rights are preserved to argue whether any such possible solutions would or would not stop the running of these high interest rates, but the point is that Debtor is directed to address why the status report and the docket do not appear to reflect any exploration of methods to avoid what appear to be the large risks of staking everything on Debtor's litigation.
Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") opposition to second cash collateral motion (dkt. 70)
Aztec's opposition notes that Debtor's second cash collateral motion proposes to pay Aztec $2,000/month of the $5,465/month generated by the property, and allocates $1,058.20 to taxes, insurance, and maintenance, but Debtor does not explain what the remaining $2,379.80/month will be used for.
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Dkt. 70, p.4:24-27. Aztec also disputes Debtor's valuation of the property, and states that Debtor should at least be making the non-default, pre-maturity contractual payment of $4,535.67/month. Id. at p.5:17-28. While the second cash collateral motion states that Debtor's basis for the valuation of the property is Debtor's declaration, Debtor's declaration does not address the value of the property. Dkt. 55, p.11. Lastly, Aztec states that it has requested access to the property to arrange its own appraisal. Id. at
p.5:21-23.
Tentative ruling on both cash collateral motions
The tentative ruling is to order Debtor to segregate 100% of any rents and profits from each rental property (the 69th Way, Shadow Lane, and 68th Way properties), and hold all such funds - after payment of real estate taxes, insurance, utilities, and essential repairs - in separate blocked accounts until further order of this Court, so as to provide an interim form of adequate protection to Aztec and to other lienholders. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to serve all lienholders with notice of a continued hearing on the cash collateral motions, concurrent with the continued status conference set forth below. In addition, the tentative ruling is to direct Debtor no later than 2/25/20 to provide Aztec and all other lienholders with access to the properties for any inspection/appraisal they wish to conduct (or, alternatively, to schedule by 2/25/20 an inspection/appraisal after 2/25/20 at a time that is convenient for the lienholders).
January MOR (dkt. 73)
This MOR (dkt.73, p.17) shows general liability insurance due to expire/only paid through 1/25/20. Has that insurance been extended? Are the MORs up to date?
Prosecution of this case
As set forth above, Debtor's prosecution of this case appears to be inadequate. Cash collateral motions are known as "first day" motions; but Debtor's cash collateral motions have been filed belatedly, served incorrectly (despite this Court's prior direction), and presented in a confusing manner (it is ambiguous whether the second motion supersedes or is in addition to the first motion). Similarly troubling, Debtor's application to employ special counsel has been filed belatedly, and neither that application nor Debtor's
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status report adequately address the cost/benefit analysis about pursuing that litigation and selling the 69th Way property or otherwise addressing possible methods to stop the running of high interest rates that could wipe out any value in this bankruptcy estate. What assurances can Debtor and Debtor's counsel provide parties in interest and this Court that this case will be adequately prosecuted?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 3/31/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/14/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Cash collateral motion (dkt.31&32)
Grant in part and deny in part on an interim basis, as set forth in calendar no. 2, 1/14/20 at 1:00 p.m.
Status report
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At the hearing on 12/17/19 this Court orally directed Debtor's counsel
to file a status report no later than 12/31/19. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Amended November Monthly Operating Report ("MOR," dkt. 43)
State court suit
The MOR reflects a $5,000 payment to James A. Judge, Esq. related to a civil law suit. Dkt. 43, p.9. Debtor also states that "a civil law suite against Aztec Financial (Secured Creditor) is pending." Id. at p.30.
The docket does not reflect any application to employ Mr. Judge as special counsel. In addition, there is no disclosure whether this payment was on account of prepetition or postpetition fees/costs/other charges. Should this Court issue an order directing Mr. Judge to show cause why he should not disgorge that payment and/or why he, Debtor, and/or Debtor's bankruptcy counsel should not have a remedy imposed for expending assets of this bankruptcy estate in violation of the Bankruptcy Code?
Car insurance
The MOR reflects that Debtor's car insurance is due to expire on 12/31/19. Id. at p.26. Has Debtor obtained replacement insurance?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 2/18/20 at 1:00 p.m., brief status report due 2/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/17/19:
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Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Cash collateral motion (dkt.31-33)
Debtor has self-calendared this motion for 1/14/20 at 1:00 p.m. That is over a month after the petition date.
What is Debtor doing with the cash meanwhile? There may be no good answer: either Debtor is using the cash, in violation of 11 U.S.C. 363(c), or Debtor is not using the cash to pay essential expenses, in violation of Debtor's duties to manage the estate and pay utility bills and other ordinary and necessary expenses in a timely manner (see 11 U.S.C. 1107-08 and 28
U.S.C. 959(b).
Why did Debtor not use the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) to have this matter heard on 14 days' notice, or alternatively apply for an order shortening time if the matter needed to be heard before that 14 day period?
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: N/A
Continued status conference: 1/14/20 at 1:00 p.m., brief status report due 12/31/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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Docket 95
Please see the tentative ruling for the status conference (calendar no. 10, 5/5/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
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fr. 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20,
4/7/20
BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Revised Tentative Ruling for 2/18/20:
Grant in part the motion of Beverly Partners, LLC ("Beverly") for relief from automatic stay (dkt. 47). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Analysis
Based on the motion papers, Debtor's opposition papers (dkt. 50), and Beverly's reply (dkt. 53), the tentative ruling is to modify the automatic stay to set deadlines - further described below - for Debtor to take steps to market and sell the property at 10838-10842 Beverly Blvd., Whittier, CA 90601 (the "Property"). This Court recognizes that Debtor has characterized the Property as his retirement security, but the tentative ruling is that there is no other way to provide adequate protection of Beverly's interest in the Property.
(1) Valuation
The tentative ruling is that Beverly's evidence is persuasive as to including a higher property tax assessment for valuation purposes (see Eggleston Reply
Decl., dkt.53, p.3:1-13) and that, with this adjustment, Debtor's approach to valuation would yield a value of $850,000 (id., p.3:14-17). Beverly's appraisal, in contrast, asserts a value of $795,000. See dkt.47, at PDF pp.77-end, and dkt. 53, p.3:18-21.
The tentative ruling is that the other evidence provided by Debtor and Beverly (e.g., as to appropriate discount rates, and the use of allegedly comparable properties) does not weigh in one direction or the other clearly enough for this Court to decide between the two valuations without an evidentiary hearing (or, perhaps, further declarations). Compare Eggleston Decl. (dkt.79, pp.79 et seq.) and Eggleston Reply Decl. (dkt.53) with Collins Appraisal (dkt.50, Ex.A) and Collins Decl. (dkt.50, pp.13 et seq.). Therefore, the remainder of this tentative ruling considers both valuations.
(2) 11 U.S.C. 362(d)(1)
Under section 362(d)(1) this Court must consider any lack of adequate protection (or other "cause" for relief). One form of adequate protection is a sufficient equity cushion.
The tentative ruling is that, unless an equity cushion is very large, an eroding equity cushion may place Bevery's interest in the Property at greater risk. Therefore, this Court must consider Beverly's equity cushion (if any), both as of the petition date (8/30/19) and currently.
In calculating that equity cushion the tentative ruling is that this Court must consider (i) the senior real estate tax lien (Claim No.2-3) of $22,417.08 as of the petition date, plus postpetition interest at 18% for the current
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calculation (id., p.2, line 9), plus (ii) Beverly's lien of approximately
$721,702.10 as of the petition date, or approximately $741,879.34 as of 11/7/19 (dkt.47, pp.7 & 11), plus postpetition interest at 17% for the current calculation (id., Ex.H, at PDF p.141) (POC 5-1, line 9), plus (iii) any other charges that are allowable under 11 U.S.C. 506(b) (e.g., ongoing attorney fees), minus (iv) adequate protection payments (3 x $3,313.63 through Beverly's 12/3/19 Reply, dkt.dkt.53, p.2:15, plus two more payments for January and February, for a total of 5x$3,313.63 = $16,586.15).
Based on these numbers, the tentative ruling is that, even using Debtor's valuation method (adjusted as set forth above), the combination of a modest equity cushion (substantially below 20%) and the current (low) adequate protection payments (very substantially below the contractual default or non-default interest rates) are insufficient. They do not provide Beverly with protection of its interest that is truly "adequate" as required by section 362(d)(1).
Therefore this Court "shall" grant some form of relief from the automatic stay. 11 U.S.C. 362(d). That relief need not necessarily be termination of the automatic stay: it can take the form of modifying or conditioning the automatic stay. Id. The tentative ruling is that, because Beverly itself would have to take time to market and sell the Property (if it were to attempt to maximize value and not risk its own recovery), Beverly will be adequately protected by providing Debtor with time in which to do the same.
Amount of time to market and sell the property
The tentative ruling is to set deadlines of (a) 2/28/20 for Debtor to file and serve an application to employ a real estate agent for the Property, (b) 4/24/20 for Debtor to file and serve a motion under 11 U.S.C. 363(b) and (f) to sell the Property, subject to overbids, (c) 5/19/20 for a hearing (and auction, if there are any overbidders), and (d) 6/23/20 to close the sale (either to the winning bidder or a backup bidder) and pay Beverly out of escrow. If Debtor fails to meet those deadlines, the tentative ruling is that Beverly would be authorized to file and serve a declaration of default and lodge a proposed order terminating the automatic stay.
Meanwhile, the tentative ruling is to monitor Debtor's progress by setting a continued hearing on this motion to the same time as the continued status conference (see calendar no. 23, 2/18/20 at 1:00 p.m.).
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(4) 11 U.S.C. 362(d)(2)
The tentative ruling is that for purposes of section 362(d)(2)(A) (whether Debtor has any equity in the Property) this Court must take into account the IRS lien (Claim No.7-1) of $64,423.96 as of the petition date (id. at PDF pp.2&4-10), plus postpetition interest of 5% for the current calculation. This Court notes that the IRS claim is secured by any property owned by Debtor, but there is no evidence that equity in any other property will decrease the amount of this claim.
The result would be that under Beverly's valuation Debtor would have no equity in the property, but under Debtor's valuation he would have some equity. Because the burden of proof is on Beverly on this issue (11 U.S.C. 362(g)(1)), the tentative ruling is that on the present record Beverly has not established an entitlement to relief under section 362(d)(2). All rights are reserved for Beverly to continue seeking to establish that element with additional evidence, and for Debtor to oppose any such evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
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Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By Simon Aron
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fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20
Docket 19
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13,
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12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured
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(e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
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Dollar amount. Such liens shall be limited to the dollar
amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt. 94, 105); Debtor's ex parte application to modifying order re relief from stay (dkt. 126, the "Ex Parte Motion"), Beverly's opposition (dkt.129)
Deny Debtor's ex parte application, for the reasons set forth in the opposition, and because this appears to be a self-created emergency.
Debtor was required to file and serve a motion to sell the property no later than 4/24/20. Dkt. 94, PDF p. 7. Debtor waited until three days before that deadline to file the Ex Parte Motion, on 4/21/20. See dkt. 124.
The parties should be prepared to address whether they will agree to any modified order granting adequate protection or other relief.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86, 101, 113)
The tentative ruling is to grant on a further interim basis, on the same
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terms as this Court's prior interim order (dkt. 113), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
(c) Deadline for filing a plan 11 U.S.C. 1189(b) provides
The debtor shall file a plan not later than 90 days after the order for relief under this chapter, except that the court may extend the period if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable.
As the order for relief in this case was entered on 8/30/19, Debtor's plan would have needed to be filed by 11/28/19. However, Debtor cannot "justly" be held accountable for his failure to file a plan by that date, as the above referenced code section did not become effective until 2/19/20.
The parties are directed to address what deadline this Court should set for Debtor to file a plan. The tentative ruling is to set a deadline of 7/15/20, subject to adjustment depending on developments with the current pandemic situation.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/2/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Continue as set forth below. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt.94, 105)
Continue to the same date and time as the continued status conference, to see if Debtor timely files and serves a timely 11 U.S.C. Section 363(b) motion, as required by this Court's adopted tentative ruling from the 2/18/20 hearing. See dkt. 94, PDF p.7.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 101), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/5/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference, because Debtor has timely filed a motion to employ a real estate broker (see dkt. 97, 98).
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/7/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Order To Show Cause Re Service Of Bar Date Order (the "OSC," dkt. 63)
Discharge the OSC based on Debtor's fourth amended proof of service (dkt.89) and supporting declaration (dkt.90).
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Grant in part, as set forth in the tentative ruling for calendar no. 20 (2/18/20 at 1:00 p.m.), with a continued hearing contemporaneous with the continued status conference (see below).
(c) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
Grant on a further interim basis, on the same terms as this Court's
prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference. Reasons: This Court's posted tentative ruling prior to the hearing scheduled for 12/10/19 (reproduced below) was not contested, and therefore it was adopted as this Court's ruling. The ruling was: "to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to [i] serve all
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required persons with notice of the continued hearing, and [ii] file a proof of service." (Emphasis added.) Beverly has done the latter (dkt.54) but not the former.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61) Grant on a final basis.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required. on 12/10/19, but Debtor and Beverly Partners, LLC ("Beverly") are directed, well ahead of the continued hearing date set forth below, to take whatever steps are necessary or appropriate to address the issues set forth below (e.g., correcting service and/or proofs of service, lodging proposed order(s), filing corrected MORs, etc.).
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Beverly's proof of service does not show service on the list of creditors
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included in Debtor's "list filed under Rule 1007(d)" (as required by Rule 4001(a)(1), Fed. R. Bankr. P.). See dkt. 1. The tentative ruling is to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to serve all required persons with notice of the continued hearing, and file a proof of service.
Cash collateral motion (dkt.19)
No proposed order has been lodged - at the hearing on 10/1/19 this Court directed counsel to lodge a proposed order granting the motion on an interim basis and attaching (and adopting) a copy of this Court's tentative ruling for that date (available at www.cacb.uscourts.gov). In addition, Debtor did not file and serve a notice of the final hearing by 10/3/19. In addition, any such service would have to be in compliance with the applicable rules for service, as stated in that adopted tentative ruling.
The current tentative ruling is (i) to direct counsel, again, to lodge a proposed order granting the motion on an interim basis through the conclusion of the final hearing, (ii) to set a final hearing for the same date and time as the continued status conference (see below), and (iii) to set a deadline of 12/11/19 for Debtor to file and serve notice of the final hearing in compliance with the applicable rules for service.
Proof of service of bar date order (dkt.28)
Debtor's counsel has had trouble with service of this order and/or proving that it was served as required. See dkt. 35,36,37. Even the latest, second amended proof of service (dkt.37) is inadequate in that it fails to state who actually served the order and when they did so. Implicitly, the person who signed the proof of service, Paulina Buitron, is the person who actually deposited the envelopes in the U.S. mail, and that was done sometime between 9/30/19, when the order was supposed to have been served, and 10/3/19, when the proof of service was filed, but the declaration does not actually say so. In addition, at the hearing on 10/1/19 this Court directed Debtor's counsel to double-check that all creditors had in fact been served and, if not, to apply for an order setting a supplemental bar date as to any creditors who have not been served.
The tentative ruling is to excuse what appears to be untimely service of the bar date order by a few days, and set a deadline of 12/11/19 (i) for Debtor's counsel to file a third amended proof of service of the bar date order, using the local form (mandatory for all motions) (see Local Form
F9013-3.1.PROOF.SERVICE), (ii) to lodge a proposed order excusing the
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untimely service of the bar date order, with a copy of this tentative ruling attached, and (iii) if necessary, apply for a supplemental bar date for any creditors who were not served with the bar date order, and lodge a proposed supplemental bar date order.
Debtor's Monthly Operating Reports ("MORs")
Debtor appears to be having trouble complying with his obligations as a debtor in possession, including not paying prepetition debts. In addition, the October MOR (dkt.49) appears to show lossess from most of Debtor's various businesses, and perilously low bank balances, even with the reduced dollar amount of the adequate protection payments to Beverly (less than the ongoing interest obligation). In addition, there is an internal inconsistency about postpetition adequate protection and/or lease payments: the October MOR (dkt.49, at PDF p.57 of 61) lists "0" postpetition payments not made (i.e., Debtor allegedly is postpetition current), but then the same table lists "Total Due" postpetition amounts of many thousands of dollars - which is it? Is Debtor postpetition current in payments to secured creditors and/or lessors, or not?
The tentative ruling is to direct Debtor (i) to confer with the Office of the United States Trustee and file whatever corrected MORs are necessary or appropriate, and (ii) to be prepared to address the foregoing issues at the continued status conference.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28; see above)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/17/19 at 1:00 p.m. (short continuance because Beverly's motion for relief from the automatic stay should be addressed soon). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
[N/A: continued to 12/10/19 (dkt.43)]
Tentative Ruling for 10/1/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Cash collateral motion
Grant (subject to this Court's standard conditions, see calendar no.1, 10/1/19 at 1:00 p.m.), provided that Debtor must address why this motion was not self-calendared for hearing until over a month after the petition date, and whether, meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Budget Motion
Debtor's status report incorrectly states that a budget motion is not required by the presiding judge's procedures. Dkt. 20, p.3. See posted Procedures of Judge Bason (available at cacb.uscourts.gov) (the "Bason Procedures") Section VII.G. In addition, a budget motion appears to be particularly important in this case because most of Debtor's income and expenses are effectively hidden and/or mis-reported.
Debtor's Bankruptcy Schedule I reports that he is an interior designer/hair stylist (dkt.22, at PDF p.27), his Statement Of Financial Affairs ("SOFA") lists various "dba" enterprises that might or might not reflect other business ventures, and Debtor apparently rents out some of his properties using Airbnb, but there is no breakdown of any of this. Contrary to the instructions on line 8a of Schedule I, debtor lists only a total net dollar amount for all businesses/properties combined - $22,598.00 per month - and fails to attach a statement for each business/property showing gross receipts, ordinary and necessary business expenses, and the calculation of net income. Also, in apparent contradiction of this alleged monthly net income, the SOFA (dkt. 22 at PDF p.31) lists gross income of $20,000 for the year to date (9 months), $7,875 for 2018, and $28,223 for 2017. (Perhaps Debtor listed monthly net income instead of yearly gross income - if so he must file a corrected SOFA.)
The tentative ruling is to direct Debtor to file an amended Schedule I and an amended SOFA, and to file and serve a budget motion and any other documents that are necessary or appropriate to correct the foregoing
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deficiencies, no later than 9/27/19.
Bankruptcy Schedule G
Debtor lists no executory contracts or unexpired leases (dkt.22, at PDF p.24). What about Airbnb and/or other short-term or long-term rental arrangements? The tentative ruling is to direct Debtor to file an amended Schedule G no later than 9/27/19.
Cash collateral
Even though this case was filed on 8/30/19, Debtor did not self- calendar his cash collateral motion for hearing until over a month later, on 10/1/19 at 1:00 p.m. Meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Employment Application
The tentative ruling is to set a deadline of 9/27/19 for Debtor to file and serve local form F 2014-1.STMT.DISINTERESTED.PROF in support of Debtor's application to employ Eric Bensamochan as his bankruptcy counsel (dkt. 18). See Bason Procedures Section VII.D.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/1/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
Docket 124
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
2:00 PM
Docket 1
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Appointment and acceptance of a chapter 11 trustee (dkt. 142, 145, 146), and Trustee's status report (dkt.157)
On 4/21/20, this Court issued its memorandum decision to appoint a chapter 11 trustee. On 4/27/20, the United States Trustee appointed Jason
M. Rund, Esq. ("Trustee"), to serve as chapter 11 trustee, and he has been duly appointed.
The tentative rulings are:
to excuse the filing of any budget motion (as requested in Trustee's status report);
to set the bar date listed below (same); and
direct Trustee to serve this Court's procedures order (dkt.5) on all parties in interest via U.S. mail, and file a proof of service, no later than 5/12/20.
The parties should be prepared to address whether there are any other outstanding issues that this Court should address at this time.
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Deadlines/dates. This case was filed on 2/14/20.
Bar date: 6/30/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.5. (no proof of service)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/30/20 at 1:00 p.m. Brief status report on due 6/16/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
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Docket 65
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 31, 4/21/20 at 1:00p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (Calendar no. 26, 3/31/20 at 1:00 p.m.).
Tentative Ruling for 1/14/20:
Please see the tentative ruling in the status conference (cal. no. 4, 1/14/20 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling in the status conference (cal. no. 19, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/29/19:
Please see the tentative ruling in the status conference (cal. no. 10, 10/29/19 at 1:00 p.m.).
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Tentative Ruling for 10/15/19:
Please see the tentative ruling in the status conference (cal. no. 3, 10/15/19 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
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to finalize an agreement and the related rule 9019 motion with joinder by secured creditor Wilmington Savings Society
Fund, FSB not in its individual capacity but soley in its capacity as trustee
fr. 4/21/20
Docket 203
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 31, 4/21/20 at 1:00p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
2:00 PM
debtor in possession on insurance claims related to damage to her Bel Air Rd property
fr. 4/7/20, 4/21/20
Docket 167
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar No. 31, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
2:00 PM
4/21/20
Docket 1
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
At the hearing on 4/21/20, this Court's tentative ruling was to appoint a chapter 11 trustee. That tentative ruling was based on the long history of this case without progress and with many mis-steps by Debtor regarding the business of running the estate.
Briefly, Debtor has alternated between:
presenting the subject property as being almost ready to rent out as an Air-BnB (at the start of this case), or as being so extensively damaged that it cannot be used at all (in the many months thereafter);
handling the claims-adjustment process herself (for a substantial time, without apparent progress), or belatedly hiring, without
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authorization, a claims adjuster (who would charge substantial fees, but whose fees would not be sufficient because the adjuster apparently contemplates hiring special counsel to represent the bankruptcy estate - all of which conceivably might be capable of being justified, but none of which has been supported despite this Court having granted continuances and set a deadline to provide supplemental information); and
proposing to refinance the subject property (but without fully paying off existing liens), or proposing to retain it, but without any apparent strategy for obtaining DIP financing, rehabilitating the property, and using it to generate income; or any other colorable business strategy for stemming the ongoing depletion of the bankruptcy estate.
In sum, if there is any viable business strategy, Debtor has given every indication of being unwilling to implement one. In addition, Debtor has used funds of the bankruptcy estate without authorization or adequate accounting, despite explanation by the United States Trustee ("UST") at the meeting of creditors (11 U.S.C. 341(a)) and the initial debtor interview ("IDI").
The foregoing issues are noted in the extensive prior tentative rulings reproduced below - see especially 10/29/19, 10/15/19, 9/24/19, and 8/20/19 - and in the filed papers of the UST and on the record at hearings. All of the foregoing appears to constitute "cause" for relief under 11 U.S.C. 1112(b), including but not limited to "(A) ... continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation, (B) gross mismangement of the estate; ... [and] (H) failure timely to provide
information ... reasonably requested by the United States trustee [regarding the filing of accurate MORs]." 11 U.S.C. 1112(b)(4). In addition, if this case were to be dismissed, the foregoing appears to constitute evidence of a willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g)(1).
Despite all of the foregoing, this Court was persuaded to continue the matter to this date. The purpose was to allow time for Debtor's proposed new counsel to substitute into the case - not because the current situation is in any way attributable to existing counsel, but instead because someone (either existing counsel or new counsel) needs to argue on Debtor's behalf, and if Debtor was in the process of switching counsel that could be awkward.
Since the last hearing this Court has issued an order (dkt. 221) approving a stipulation between Debtor and the United States Trustee permitting Debtor to continue using her trust account, subject to certain conditions. But the docket does not reflect any substitution of counsel, nor
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does the docket reflect any progress on all the other long-pending and critical issues noted above.
In addition, if Debtor could arrive at a viable business strategy, then she would have to propose a viable chapter 11 plan to implement that strategy and stop the running of high rates of interest (default and non- default). See Tentative Ruling for 4/7/20, part "(1)(b)" (reproduced below). The docket does not reflect any such plan, or any progress toward such a plan.
Based on the foregoing, the tentative ruling remains to appoint a chapter 11 trustee, to see if there is any viable way to reorganize this bankruptcy estate. If not, the tentative ruling is to dismiss this case with a 180 day bar under section 109(g)(1).
The UST should also be prepared to address whether there are any outstanding compliance issues.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217)
The tentative ruling is to deny this Application for lack of prosecution.
At the 4/7/20 hearing, this Court ordered Debtor to file a declaration(s) with an update on the projected repair costs. As of the preparation of this tentative ruling, Debtor still has not complied.
Contemplated motion to approve settlement with Wilmington Savings Fund ("Wilmington")
At the 4/7/20 hearing, this Court orally shortened time for Debtor to file a contemplated motion to approve a settlement with Wilmington that would resolve the parties' default interest, late fees, and other charges dispute, but set a deadline of 4/14/20 for Debtor to file and serve the motion. On 4/13/20, Debtor filed an ex parte application requesting modification of the filing and service deadlines (dkt. 203), which this Court treated as an application for hearing on shortened time and granted the application (dkt. 204). As of the preparation of this tentative ruling, no motion is on file. Accordingly, the tentative ruling is to deny the request to shorten time, and take this matter off- calendar, without prejudice to any similar request for relief in future (by a chapter 11 trustee, or anyone else).
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Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/16/20 at 1:00 p.m. Brief status report due 6/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
The tentative ruling is to appoint a chapter 11 trustee based on the long history of this case without progress and with many mis-steps by Debtor (as set forth in this tentative ruling and the extensive prior tentative rulings reproduced below). In addition, the UST should be prepared to address
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whether Debtor's March MOR (dkt. 208) sufficiently addresses the issues previously identified.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. At the last hearing, this Court ordered Debtor to file a declaration(s) with an update on the projected repair costs and a statement of disinterestedness. As of the preparation of this tentative ruling, Debtor has not complied. Why not?
Motion to approve settlement with Wilmington Savings Fund ("Wilmington")
At the last hearing, this Court orally shortened time for Debtor to file a motion to approve a settlement with Wilmington that would resolve the parties' default interest, late fees, and other charges dispute, but set a deadline of 4/14/20 for Debtor to file and serve the motion. On 4/13/20, Debtor filed an ex parte application requesting modification of the filing and service deadlines (dkt. 203), which this Court treated as an application for hearing on shortened time and granted the application (dkt. 204). As of the preparation of this tentative ruling, no motion is on file.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/19/20 at 1:00 p.m., concurrent with other matters. Brief status report due 5/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
There is no tentative ruling. The parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on:
the UST's MTD and related papers,
Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174),
Debtor's apparent history of mis-starts and poor management of this estate, including a long history of missed projections about how this case would progress, an abandoned attempt to retain a professional to rent out property as an Air-bnb, the belated and unsuccessful attempts to explore a sale or refinancing of the Bel Air property, and transfers of funds without adequate explanation (as referenced in this Court's prior tentative rulings for 10/29/29, 10/15/19, and 9/24/19, reproduced below).
Inadequate attempts to stop the running of default interest
An additional concern, which may bear on the MTD, is whether Debtor has made adequate attempts to stop the running of postpetition default interest payable to Patch of Land Lending, LLC ("Patch"). The tentative ruling is that she has not.
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From the inception of this bankruptcy case this Court has raised
concerns that default interest, late fees, and other charges are consuming any equity in the Bel Air property at a rapid rate. On 8/13/19 this Court issued an order conditionally continuing the automatic stay under 11 U.S.C. 362(c)
(3) and setting a deadline of 11/12/19 for Debtor to "file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at stopping the running of postpetition default interest owed to Patch [of Land Lending]." Dkt. 31, Ex.1, p.1, item "(ii)" (emphasis added). Debtor filed a motion challenging the validity of Patch's assertion that it is entitled to default interest and late fees under 11 U.S.C. 506(b) (the "Default Interest Motion," dkt. 123). That is insufficient, for two reasons.
First, it is not enough to file the Default Interest Motion without prosecuting it. The hearing on that motion has been continued several times (dkt. 129, 133, 141) with the current hearing set to be heard 5/5/20 at 1:00
p.m. (dkt. 164).
Second, the Default Interest Motion has the effect of gambling that Debtor will prevail in her attempt to establish that no default interest is owed - an uphill battle that might well fail - rather than stopping the running of whatever interest turns out to be owed. See, e.g., East West Bank v.
Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019) (allowing default interest). This distinction is further explained below.
As a preliminary matter, it is helpful to recognize the different periods in which default interest may accrue:
Three categories of interest exist in bankruptcy cases: (1) interest accrued prior to the filing of the bankruptcy petition (prepetition interest); (2) interest accrued after the filing of a petition but prior to the effective date of a reorganization plan (pendency interest); and (3) interest to accrue under the terms of a reorganization plan (plan interest). ...
Generally, the Code does not provide for pendency interest to creditors, because the filing of the petition usually stops interest from accruing. Section 506(b), however, provides an exception for oversecured creditors:
To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of
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such claim, there shall be allowed to the holder of such claim, interest on such claim, and any reasonable fees,
costs, or charges provided for under the agreement or State statute under which such claim arose. [11 U.S.C. 506(b) (emphasis added).]
Thus, an oversecured creditor can recover pendency interest as part of its allowed claim, at least to the extent it is oversecured.
Any accumulated pendency interest determined under § 506(b) is added to the allowed claim of an oversecured creditor and then paid pursuant to the terms of the confirmed plan with plan interest determined under § 1129(b)(2)(A)(i)(II). [In re Beltway One Dev.
Group, LLC, 547 B.R. 819, 826 (9th Cir. BAP 2016) (emphasis added, citations omitted).]
There are only three ways that occur to this Court to stop the running of pendency default interest.
A sale under section 363
Debtor could sell the Bel Air property under 11 U.S.C. 363. That is only a partial remedy because it does not stop the running of pendency default interest before the proceeds are distributed. GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008). But at least from that point forward it would stop the ongoing accrual of pendency default interest.
Unfortunately, a section 363 sale appears to be precluded because Debtor reports that any sale of the Bel Air property would result in capital gains taxes estimated at roughly $1 million. Dkt.159, p.17:1-4. In other words, the cure might be worse than the disease.
Refinancing the debt
Debtor attempted to refinance Patch's debt, but not fully. Patch objected, and this Court denied Debtor's refinancing motion. Debtor has not presented any alternative refinancing proposal. So this alternative appears to be unavailable.
Plan confirmation
The last way known to this Court to stop the running of pendency default interest is to confirm a plan that restructures the debt to Patch and reduces the interest rate. As with the other alternatives, this is only a partial remedy because it does not stop the running of pendency interest before the effective date of the plan. But at least it stops the accrual of default interest going forward.
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An added benefit of confirming a plan used to be available under some decisions in the Ninth Circuit: retroactively eliminating all pendency default interest. See Beltway One, 547 B.R. 819, 826-28 (discussing In re Entz- White Lumber & Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), and subsequent lower court decisions). But more recent guidance from the Court of Appeals has been interpreted to mean that pendency interest is not eliminated unless the claim is left unimpaired - i.e., unless all defaults in un-matured long-term debt are cured, or matured debt is paid in full on the effective date. See Beltway One, 547 B.R. 819, 826-28 (interpreting Future Media, 547 F.3d
956).
This Court expresses no opinion on these issues except to note that they exist. The point is that, at the very least, it appears that confirmation of a plan would provide a partial remedy because it would stop the ongoing running of pendency default interest, and replace it with plan interest going forward.
Conclusion as to default interest
Why has Debtor not attempted to move forward with a plan of reorganization to address the default interest?
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. Debtor should be prepared to provide this Court with an update on the 4/1/20 AIG inspection (dkt. 192, Bordon decl., para. 7) and AIG's response, if any, to the adjusted insurance claim of
$454,717.11 (id., para.6). Wilmington should be prepared to address under what conditions it would support employment of ClaimsXP (or any other adjuster).
If this Court is persuaded to grant the Application and authorize some form of employment of ClaimsXP retroactively to 1/7/20, employment will be subject to Judge Bason's standard employment terms (avaiable at www.cacb.uscourts.gov). Additionally, any employment will be subject to the filing of a satisfactory statement of disinterestedness as required by the posted Procedures of Judge Bason (id.) by 4/10/20.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta
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("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right to object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Motion to allow Claim 31 filed by Deanna D’Egidio ("Claimant") (dkt. 152), debtor’s motion to extend opposition deadline (dkt. 186) and order thereon (dkt. 189), debtor's opposition (dkt. 187), claimant’s reply (dkt. 193)
The tentative ruling is to grant the motion on the terms set forth in Debtor’s opposition (dkt. 187) and Claimant’s reply (dkt. 193): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of
$44,500.00.
Proposed orders: Movants are directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/5/20 at 1:00 p.m., concurrent with other matters. Brief status report due 4/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
Continue to the same date and time as the continued status conference (see below), with a deadline of 4/6/20 at noon for Debtor to file amended bankruptcy schedules I & J, including all continuation sheets for line
8.a of schedule I.
At the continued status conference, the parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on the UST's MTD and any argument at the hearing, based on the matters addressed in the MTD and supplement, Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174), Debtor's hiring of a claims adjuster on or about 1/7/20 (dkt.
167, p.3, para. 11) without authorization of this Court, and Debtor's apparent arrangement for the claims adjuster to hire counsel to represent the bankruptcy estate without authorization of this Court.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
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Continue to the same date and time as the continued status
conference (see below). The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right ot object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 1:00 p.m., concurrent with other matters. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
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Continued status conference: 3/31/20 at 1:00 p.m., brief status report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
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Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
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Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77, 80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
Termination of prior real estate agent
Debtor reports (dkt. 69, para.3) that the previously authorized real estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
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Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent [that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties") that may be part of a real estate transaction for the sale of the Real Property [i.e., dual agency? that is prohibited by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
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What does the quoted text mean? This Court's questions are set forth in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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fr. 1/28/20, 03/31/20, 4/21/20
Docket 475
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
TCF EQUIPMENT FINANCE, a Represented By
Raffi Khatchadourian Christopher D Crowell
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Payment to Debtor
fr. 1/28/20, 03/31/20, 4/21/20
Docket 486
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
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fr. 4/21/20
Docket 532
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 12, 5/5/20 at 1:00 p.m.)
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 28, 4/21/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
2:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20, 4/21/20
Docket 1
Revised Tentative Ruling for 5/5/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
(b) Debtor's Motion to Strike (dkt. 605, 606)
The tentative ruling is to grant in part the Motion to Strike, in so far as it objects to the portions of the LA Fire response (dkt. 602, p.1:6-19, p.2:1-7, p.6:5-7) and City response (dkt. 603, pp.2:27-5:16) that do not address the Creditor Trust Agreement, for the reasons stated in the Motion to Strike and the following additional reason. The tentative ruling is that excusing non- compliance with this Court's deadlines would unduly prejudice Debtor's former employees who hold priority wage claims, and other creditors who are in need of distributions and who have already had to wait for the complex issues in this bankruptcy case to be litigated and resolved.
The tentative ruling is to deny in part the Motion to Strike as to arguments raised re the Creditor Trust Agreement, because Debtor filed the
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2d Supplement (dkt. 596) that included the Creditor Trust Agreement one week prior to the confirmation hearing. Therefore LA Fire and City is would not be reasonable to expect that they would have raised any issues they had with the Creditor Trust Agreement sooner than they did.
(b) Debtor's Second Amended Plan (the "Plan," dkt. 562), Second Amended Disclosure Statement (the "Disclosure Statement," dkt. 563), first Supplement (the "1st Supplement," dkt. 578), Cathay Bank's Response to the Plan (the "Cathay Response," dkt. 581), Objections Of The City Of Monrovia ("City") to the Plan (dkt. 583), Debtor's second Supplement (the "2d Supplement," dkt. 596), Debtor's reply (dkt. 598, 599, 601), Los Angeles County Fire Department ("LA Fire") response to 2d Supplement (dkt.602), City's response to Debtor's reply (dkt.603), and Debtor's third Supplement (the "3rd Supplement," dkt. 609)
The tentative ruling is to (i) approve the Disclosure Statement (dkt.
563) on a final basis, (ii) confirm Debtor's Plan (dkt. 562) as modified by the 1st Supplement (dkt. 578) and the 3rd Supplement (dkt. 609) (including removal of Section 8.2(a)(ii) of the Plan, dkt. 562, p.26:3-8), and (iii) approve the amended Creditor Trust Agreement (dkt. 609, Ex. A), provided that any waiver of conflicts of interest in section V.B.2. of thereof (dkt.609, Ex.A, p.12) shall be subject to the following limitations. First, such waiver of conflicts shall not include any conflicts that are non-waivable under applicable nonbankruptcy law or ethical rules. Second, such waiver of conflicts is further limited to those potential or actual conflicts that typically arise in such liquidating trusts, including for example, the fact that potential conflicts might arise because, in assisting in the administation of the Trust, the professionals
(A) are also assisting in recovery of funds from which to pay their own fees, and (B) typically are seeking recovery from individual creditors notwithstanding that the Trust is for the collective benefit of all creditors (see Recital "D", dkt.609, Ex.A, p.5). In addition, the tentative ruling is to set a post-confirmation status conference as set forth below.
The foregoing tentative ruling includes overruling the objections of the City and LA Fire, except to the extent of the modifications made by Debtor in response to those objections. Without limiting the immediately preceding sentence, the tentative ruling is to overrule LA Fire's objection that the Creditor Trust's indemnification and hold-harmless provisions cannot apply to governmental units or criminal liability (see dkt.602, pp.5:1-6:7) because
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those provisions by their own terms provide exceptions for gross negligence or willful misconduct, and LA Fire has not cited any authority that it would be appropriate or mandatory to preclude indemnity even when those exceptions do not apply.
Proposed orders: This Court will issue a Memorialization of Tentative Rulings after the hearing date. Then Debtor is directed to lodge proposed orders (x) granting in part the motion to strike, (y) approving the Disclosure Statement on a final basis, and (z) confirming the Plan, approving the amended Creditor Trust Agreement, and setting a post-confirmation status conference.
Those orders must be lodged via LOU within 7 days after the hearing date. Those orders must reference this Court's Memorialization of Tentative Rulings, thereby incorporating them as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement (dkt. 562, 563)*: See above.
Post confirmation status conference: 8/4/20 at 1:00 p.m., brief
status report due 7/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/5/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 4/21/20:
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Appearances required by counsel for the debtor, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion For Order Approving Settlement Agreement Between Debtor And TCF National Bank (the "Settlement Motion," dkt. 573)
The tentative ruling is to grant the Settlement Motion.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
TCF Equipment Finance, Inc.'s Motion For Allowance And Payment Of Administrative Expense Claim (dkt. 475) and Debtor's Amended Motion For Order Authorizing Surcharge Of Collateral (dkt. 486)
The tentative ruling is to continue both motions to the same date and time as the continued status conference, to ensure that an order approving the parties' Settlement Motion is lodged and entered, with the understanding that the motions will come off calendar if the order on the Settlement Motion is issued prior to the continued hearing.
Debtor's Second Amended Plan (the "Plan," dkt. 562), Second Amended Disclosure Statement (the "Disclosure Statement," dkt. 563), first Supplement (the "1st Supplement," dkt. 578), Cathay Bank's Response to the Plan (the "Cathay Response," dkt. 581), Objections Of The City Of Monrovia ("City") to the Plan (dkt. 583), second Supplement (the "2d Supplement," dkt. 596), Debtor's reply (dkt. 598, 599, 601), City's response to 2d Supplement (dkt.602), City's response to Debtor's reply (dkt.603)
The tentative ruling is to accept City's latest reponses in view of the fact that the 2d Supplement was only recently filed. In addition, the tentative ruling is (x) to sustain City's objections in part and overrule them in part, and
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continue this confirmation hearing to the same date as the continued status conference, for the reasons set forth below.
The tentative ruling is that City has not established that Debtor is holding its alleged funds in trust
City argues that the Plan should not be confirmed because Debtor holds approximately $400,000 in trust for City (the "City Funds"), based on the parties' contractual agreement for advanced life support services, but the Plan treats those funds as part of the estate and City's claim as an unsecured claim. Dkt. 583, pp.2-5. Debtor's reply argues that the language from the parties' agreement is insufficient to create an express trust under California law (dkt. 598, p.1:9-14), that there was no meeting on minds or performance consistent with any such trust (id. at p.2:3-28), and that City is barred by waiver or laches. Id. at pp.4:17-7:8. The tentative ruling is not to reach those issues because the following issue is dispositive of this particular objection.
Debtor provides evidence that City's alleged funds were commingled with the funds that were collected for other localities and therefore, debtor argues, even if the parties' intent was to create a trust fund, City has not met its burden of establishing any actual trust fund, including any tracing of the funds at issue. Dkt.598, pp.3:3-4:14. City has not presented any contrary evidence, or any authority establishing that it can assert a trust absent segregated funds. The tentative ruling is that Debtor is correct.
In sum, the City has not established any actual trust fund that would let it come ahead of other creditors, and be paid 100% of what it is owed while other creditors, whose own situations are also empathetic, receive little or nothing. Therefore the tentative ruling is to overrule this objection to confirmation.
The tentative ruling is that more notice and possible re- balloting and/or amendment of proposed releases and other terms are required
City's objection argues that the Plan should not be confirmed because it has not been proposed in good faith as required by Section 1129(a)(3).
Dkt. 583, p.5:20-23. City puts forth various arguments for why "Debtor's bad faith is evident," but one of those arguments essentially repeats the "trust fund" issue addressed above so it will not be separately addressed. For the same reasons, City argues that cerain releases should not apply, either generally or as against City. See dkt. 583, p.5:14-15.
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The Plan is incomplete
City argues that as of the deadline for objecting to the Plan it was
incomplete. Dkt. 583, p.5:24. That is accurate. Section 4.1 of the Plan provides for the establishment of a Creditor Trust to administer Debtor's assets, but the Plan does not include a copy of the Creditor Trust Agreement. See dkt. 562, p.18, para. 4.1; dkt. 562, p.24, Ex. 1; dkt. 583 p.6:2-9.
The tentative ruling is that, now that the 2d Supplement has been filed (on 4/14/20, dkt.596) and now that this Court can assess its provisions, those provisions require additional disclosure - a supplement to the Disclosure Statement. In addition, the tentative ruling is that the terms of the 2d Supplement require re-balloting, an opportunity to object, and/or withdrawal of those provisions.
Leslie McNeal as trustee of the Creditor Trust
City argues that the Plan has been proposed in bad faith because it entrusts the Creditor Trust to Leslie McNeal, an insider of the Debtor who previously failed to fulfill fiduciary trust obligations. Dkt. 583, p.5:24-27; p.6:20-26. Debtor responds Leslie McNeal is Debtor's officer and principal with the most experience and knowledge about Debtor's billing and collections, and so it is necessary and appropriate that Leslie McNeal serve as trustee for the Creditor Trust. Dkt. 598, p.8:3-7.
The tentative ruling is that making Leslie McNeal trustee, with little or no opportunity for oversight or removal by creditor/beneficiaries, is not sufficiently justified. Accordingly, absent more control by creditor/beneficiaries, the tentative ruling is to sustain the objection. But the tentative ruling is to provide an opportunity for Debtor to amend the trust agreement to address this issue.
Treatment of the Schaefer Trust
City argues that the Plan unfairly advantages the Schaefer Trust loans over other claims. Dkt. 583, pp.5:28-6:1; p.7:2-14. City argues that given that Debtor obtained the secured loans from the Schaefer Trust weeks before filing the bankruptcy petition, and now Debtor proposes to pay the Schaefer Trust ahead of City, this Court should at a minimum disregard acceptance of the Plan by the Schaefer Trust, or subordinate or recharacterize the secured claims to Class 4 unsecured creditors. Dkt. 583, p.7:2-22. Debtor's reply argues that the treatment of the Schaefer Trust is fair in light of the considerable funds loaned to Debtor, and the concessions the Schaefer Trust made to allow Debtor to propose a feasible plan. Dkt. 598, pp.6:10-p.7:23.
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The tentative ruling is that City's objection is not persuasive on the
issue of paying the Schaefer Trust ahead of City. As described above, as City has not established that Debtor was holding any of its funds in trust, and City has not established that is entitled to treatment other than as an unsecured creditor. Therefore it is reasonable, and in fact required by the Bankruptcy Code, that Debtor to propose to pay a secured claim ahead of City's unsecured claim.
But, to the extent that City is arguing that the broad releases provided to the Schaefer Trust are inappropriate, this Court requires more information as set forth below.
Broad releases
As pointed out in City's objection, the Plan provides for broad releases. Dkt. 583, p.4:23. In its reply, Debtor argues that the releases provided to the Schaefer Trust were "an important factor and consideration for its agreement to subordinate its claims" and to "provide any funds necessary to ensure payment in full to administrative and priority claimants." Dkt. 598, p.7:17-22.
Section 8.2(a)(ii) of the Plan provides in relevant part
... all parties in interest in this Chapter 11 Case shall be deemed to have released all of the Released Claims against the following Entities: the Debtor, the Creditor Trust and the Professionals, and against each and every one of their present and former directors, officers, employees, professionals, agents, equity holders, shareholders, members, trustees, beneficiaries, representatives, attorneys, advisors, successors and assigns. [Dkt. 562, p.26:3-8 (emphasis added)]
Section 1.65 of the Plan defines "Released Claims" as follows Released Claims means, except as otherwise provided herein, all Claims, debts, demands, actions, causes of action, suits, accounts, covenants, contracts, agreements, promises, damages, claims and liabilities whatsoever, known or unknown, associated with the Debtor, the Estate, or the Chapter 11 Case, existing on the Confirmation Date or which thereafter could arise based on any act, fact, transaction, cause, matter, or thing that occurred prior to the Confirmation Date, with the exception of the following ... (iii) Claims arising from the fraud, willful misconduct, or gross negligence of any Person ... [Dkt. 562, p.8:15-23 (emphasis added)]
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Section 8.2(a)(i) of the Plan largely mirrors the release language from Section 8.2(a)(ii) quoted above, but instead it is the Debtor and the Estate who are deemed to release all Released Claims with some exceptions. See dkt. 562, p.25:25-28. While the releases provided in Section 8.2(a)(i) might be permissible, Section 8.2(a)(ii) appears to provide for third party releases which is not permissible under Ninth Circuit case law. See In re Lowenschuss, 67 F.3d 1394, 1401-02 (9th Cir. 1995) ("This court has repeatedly held, without exception, that [Section] 524(e) precludes bankruptcy courts from discharging the liabilities of non-debtors. … In American Hardwoods, 885 F.2d at 625-26, we explicitly rejected the argument … that the general equitable powers bestowed upon the bankruptcy court by 11
U.S.C. [Section] 105(a) permit the bankruptcy court to discharge the liabilities of non-debtors."); see also Deocampo v. Potts, 836 F.3d 1134, 1143 (9th Cir. 2016) (reiterating Lowenschuss principles).
In addition, even for those releases that would be permissible under Ninth Circuit law - e.g., releases by Debtor and the bankruptcy estate - the tentative ruling is that Debtor must support its proposed releases just as it would for any other settlement. In other words, Debtor must show that the usual factors support granting the releases. See In re A&C Prop's, 784 F.2d 1377, 1381 (9th Cir. 1986).
The tentative ruling is to sustain City's objection insofar as denying confirmation if the proposed releases are included. But the tentative ruling is to provide Debtor with an opportunity to craft more limited release language.
Conclusion
The tentative ruling is that for the reasons set forth above, Debtor's plan cannot be confirmed today, and this confirmation hearing should be continued to the same date and time as the continued status conference. The tentative ruling is that Debtor must file and serve on all creditors appropriate briefs and/or declarations including revised language of the Plan and trust documents by no later than two weeks prior to that hearing, with any response by City or any other party in interest due no later than one week prior to that hearing.
Deadlines/dates. This case was filed on 2/20/19.
Bar date: 6/17/19 (timely served, dkt. 129).
Plan/Disclosure Statement (dkt. 562, 563)*: See above.
Continued status conference: 5/19/20 at 1:00 p.m. No written
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status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
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Docket 605
Please see the tentative ruling for the status conference (calendar no. 12, 5/5/20 at 2:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 0
Appearances required. The tentative ruling, subject to any opposition and reply at the hearing, is to grant the motion in part and deny it in part as set forth below.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis
AC Yu Chan Holding, LLC has filed an emergency motion seeking an order extending (i) the deadline to file a plan under 11 U.S.C. 362(d)(3) and
the exclusive periods to file a plan of reorganization and to obtain acceptance of the debtor’s plan pursuant to 11 U.S.C. 1121 and 362(d)(3) (dkt. 84, the "Extension Motion"). The tentative ruling is that, subject to any opposition at the hearing, cause exists to grant the Extension Motion on the terms set forth below.
Joint administration
Three bankruptcy cases are being jointly administered: (i) In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan") (the lead case); In re AC Yu Chan Holding, LLC (Case No. 2:20-bk-11476-NB) ("Holding"); and In re A Touch of Brass, Inc. (2:20-bk-115550-NB) ("Brass" and collectively, the "Debtors"). The Extension Motion relates to the Holding case.
Shortened time
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This Court issued an order provisionally shortening time (the "OST,"
dkt.82), setting this hearing on 5/6/20 because that is the date on which Le Elegant Bath, Inc. ("Elegant") has asserted that the 90-day period of 11
U.S.C. 362(d)(3) expires. See dkt.70, p.7:20. That date appears to be based on a mistake as to when Holding filed its bankruptcy petition; but this Court did not wish to pre-judge that issue, so this Court presumed for purposes of shortening time that the 90-day period might expire on 5/6/20, and that any extension would have to be "by order entered within that 90-day period" (11
U.S.C. 362(d)(3), emphasis added). Hence, a hearing on 5/6/20 was required.
Notice
The OST required service on 5/4/20 via expedited means, so as to be received by 5/5/20 at noon. Dkt.82, p.2. It appears that notice has been provided within that deadline (see dkt.85, 86, 87), and although it is not clear whether all parties who have been served via electronic means have consented to such service, the tentative ruling is that there has been sufficient notice for purposes of the limited relief granted in this tentative ruling.
Cause exists to extend the deadline for Holding to file a plan
In evaluating whether there is cause to extend the deadline for Holding to file a plan of reorganization and related exclusivity deadlines, this Court first considers how much exigency exists at this time and whether Holding really is up against a deadline to file a plan.
The tentative ruling is that such exigency does exist because this Court might determine that this is a single asset real estate case ("SARE") at a hearing on 5/12/20 and that section 362(d)(3)(A) applies, even if this Court were to find that section 362(d)(3)(B) does not apply in view of Elegant’s judgment lien. Although Holding raises the possibility that Elegant’s lien is avoidable as a preferential transfer under section 547, it is not clear on the present record that this necessarily is so. For example, it is not clear whether Holding was insolvent as of the relevant dates required to establish a claim under section 547.
Next, this Court considers whether Holding has established sufficient cause to grant the requested extensions and the tentative ruling is that sufficient cause exists as follows. Holding represents that cause exists to extend the relevant deadlines because it intends to propose a joint plan with
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Chan and Brass. This appears to be sufficient cause to extend these deadlines because (i) the jointly administered Debtors may be determined to be the alter egos of each other, (ii) they might move for substantive consolidation of their cases, or (iii) a joint plan might make the most sense even absent either of the other two situations just mentioned (this Court expresses no opinion on these issues, except to note that there are reasons why Holding's case might be complicated by a joint plan, and that complication is a ground for extension).
In addition, this Court is mindful that COVID 19 presents economic and financial uncertainties that may impede the jointly administered Debtors’ ability to negotiated with their creditors and prepare plan(s). This is an alternative reason why additional time appears to be appropriate.
This Court balances those concerns with Congress’ intent to set a relatively short deadline to protect secured creditor’s interests, and the clear language of 362(d)(3) directing that this Court "shall" grant relief from stay if Holding does not timely comply with section 362(d)(3)(A) (or, if were to apply, section 362(d)(3)(B)). But this Court is also mindful that the "relief" required by section 362(d)(3) does not necessarily mean termination of the stay, and instead Congress has left it to this Court’s discretion whether to terminate, annul, modify or condition the automatic stay. These considerations are relevant, in construing the statute as a whole, both to determining what is "cause" for additional time under section 362(d)(3) and in determining whether this Court should impose any conditions on any extension of time.
The tentative ruling is to grant Holding’s request for an extension to file a plan and extend the deadline to 8/7/20, but as a condition of granting such extension, this Court will require Holding to make adequate protection payments to Elegant in the form of interest only payments, calculated by applying the formula set forth in Till v. SCS Credit Corp., 541 U.S. 465 (2004). The parties should be prepared to address the appropriate calculation of such adequate protection payments.
Cause exists to provisionally grant extensions of the 1121 exclusivity deadlines
Turning to Holding’s request for an extension of the section 1121 exclusivity deadlines, on this record it is not as clear whether the same exigency exists as those discussed above. Therefore, the tentative ruling is provisionally to extend the exclusivity periods, such that the exclusivity
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period for filing a plan is extended to 8/7/20 and the deadline for solicitation of acceptances of the plan is extended to 10/9/20, subject to adjustments in future, either decreasing or increasing the time based on how COVID-19 plays out, and because interested parties were only afforded minimal notice of the Extension Motion. Such adjustments might be made on written or oral motion of a party in interest, or on this Court's own motion, either at a self- calendared hearing or at a future status conference (which is this Court's more usual procedure for setting such deadlines).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 31
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bryan C Woods Pro Se
Joint Debtor(s):
Donna P Woods Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A vs
DEBTOR
Docket 30
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-15542-NB) was dismissed (on 7/22/19) within one year before this case was filed (on 11/18/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the
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automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ariel Antonio Obregon Represented By Nicholas M Wajda
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Robert P Zahradka
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
BANK OF NEW YORK MELLON TRUST CO
vs DEBTOR
Docket 26
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Travestine Lenette Casey Represented By Onyinye N Anyama
Movant(s):
Bank of New York Mellon Trust Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEALERS FINANCE CO.
vs DEBTOR
Docket 14
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay applies
Deny the request for an order confirming that no stay is in effect. Movant has not presented any argument or evidence to establish that an exception to the automatic stay applies under 11 U.S.C. 362(b) or (c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
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Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), because Movant has not presented any argument or evidence to warrant such relief.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tracey Donyel McCloud Pro Se
Movant(s):
Dealers Finance Co. Represented By
Alexander H Haberbush
10:00 AM
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 30
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jeremy Paul Hansen Represented By
Glenn Ward Calsada
Movant(s):
Santander Consumer USA Inc. dba Represented By
Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 56
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rose J West Represented By
Daniela P Romero
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
EAGLE EYE INVESTMENT, LLC
vs DEBTOR
Docket 23
Grant in part and deny in part as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-17896) was dismissed (on 7/26/19) within one year before this case was filed (on 2/24/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See
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In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is insufficient evidence on the record to convince this court that Debtor is involved in a scheme to delay, hinder, or defraud the Movant as is required under the authorities cited above. As noted in Debtor's response, her prior bankruptcy case was filed and dismissed well before any eviction proceedings had commenced. See dkt.27.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Evidence
This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This Court makes
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no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Katherine Patrice Nilsen Represented By Kahlil J McAlpin
Movant(s):
Eagle Eye Investment, LLC, a Represented By Barry L O'Connor
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
EAGLE EYE INVESTMENT, LLC
vs DEBTOR
Docket 24
Grant in part and deny in part as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-17896) was dismissed (on 7/26/19) within one year before this case was filed (on 2/24/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See
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In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is insufficient evidence on the record to convince this court that Debtor is involved in a scheme to delay, hinder, or defraud the Movant as is required under the authorities cited above. As noted in Debtor's response, her prior bankruptcy case was filed and dismissed well before any eviction proceedings had commenced. See dkt.28.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Evidence
This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This Court makes
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no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Katherine Patrice Nilsen Represented By Kahlil J McAlpin
Movant(s):
Eagle Eye Investment, LLC, a Represented By Barry L O'Connor
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
WILMINTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 75
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Wilmington Trust, National Represented By Robert P Zahradka Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING INC.
vs DEBTOR
Docket 80
Tentative Ruling for 5/12/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
fr. 06/11/19, 07/02/19; 08/06/19, 9/17/19, 10/15/19, 02/18/20, 03/31/20, 4/21/20
NATIONAL MORTGAGE, LLC
vs DEBTOR
Docket 62
Debtor(s):
Rodney Albert Gabriel Jr Represented By Julie J Villalobos
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 33
Debtor(s):
Elias Robert Abu Shanab Represented By Heather J Canning
Joint Debtor(s):
Sarah Rhea Abu Shanab Represented By Heather J Canning
Movant(s):
WELLS FARGO BANK, N.A. Represented By Arnold L Graff Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BRIDGECREST CREDIT COMPANY, LLC
vs DEBTOR
Docket 26
Debtor(s):
Clara Lila Gonzales Represented By Steven A Alpert
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 36
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 59
Approve the Trustee's final report and allow the Trustee $1,013.06 in fees and $3.00 in expenses, for a total award of $1,016.06. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
SHAMINICIA T BUTLER Represented By
11:00 AM
Trustee(s):
Renee E Sanders
Carolyn A Dye (TR) Pro Se
11:00 AM
U.S.C 363(b); (2) Approving Bidding Procedures; (3) Approving Buyer as Good Faith Purchaser Pursuant to 11 U.S.C 363(m); and (4) Approving Compromise of Controversy Pursuant to Federal Rule of Bankruptcy Procedure 9019
Docket 135
Grant, subject to overbids at the hearing and the buyer's good faith declaration, as further provided below. Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): no opposition is on file
Reasons: The tentative ruling is to grant the motion under 11 U.S.C. 363(b), 363(f) and Rule 9019 (Fed. R. Bankr. P.), subject to (i) any qualified overbids at the hearing in a manner outlined in the motion, (ii) the filing of a "good faith" declaration (11 U.S.C 363(m)) by Mr. Partida, if there are no overbidders or if he is the winning bidder, that substantially complies with Judge Bason's posted procedures (available at cacb.uscourts.gov), and (iii) if there are overbidders, subject to the filing of a "good faith" declaration by the
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winning bidder that substantially complies with Judge Bason's posted procedures.
The tentative ruling is also to waive the 14-day stay (Fed. R. Bankr. P.
6004(h))
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:20-01018 Acossano et al v. INTERNAL REVENUE SERVICE et al
fr. 4/7/20
Docket 1
Tentative Ruling for 5/12/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
(a) Current status
As of the last hearing on 4/7/20, plaintiff was unsure about proceeding with this litigation. What is the current status? (Normally that would be reflected in updated status reports, and normally this Court would inquire why the parties have not filed updated status reports, but given the uncertainty of the situation at the last status conference this Court presumes that the parties have not filed updated status reports because there is no change from the prior status reports.)
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
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Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket numbers 9 and 10).
Mediation [intentionally omitted]
Deadlines
This adversary proceeding has been pending since 1/30/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 8/4/20 Expert(s) - deadline for reports: 8/11/20
Expert(s) - discovery cutoff (if different from above): 8/18/20 Dispositive motions to be heard no later than: 9/29/20
Joint Status Report: 9/15/20
Continued status conference: 9/29/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/27/20 Pretrial conference: 11/10/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 11/10/20 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 11/16/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
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telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (adv. dkt. 9) and the other filed documents and records in this adversary proceeding.
Current issues
Status Report
As of the preparation of this tentative ruling, Defendant FTB has not filed a joint or unilateral status report. Why not?
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR
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Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 1/31/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 8/4/20 Expert(s) - deadline for reports: 8/11/20
Expert(s) - discovery cutoff (if different from above): 8/18/20 Dispositive motions to be heard no later than: 9/29/20
Joint Status Report: 9/15/20
Continued status conference: 9/29/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/27/20 Pretrial conference: 11/10/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 11/10/20 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 11/16/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martin Joseph Acossano Represented By Kevin T Simon John D Faucher
11:00 AM
Defendant(s):
INTERNAL REVENUE SERVICE Represented By
John D Ellis
FRANCHISE TAX BOARD Represented By Brian D Wesley
Joint Debtor(s):
Denise Lorraine Acossano Represented By Kevin T Simon John D Faucher
Plaintiff(s):
Martin Joseph Acossano Represented By John D Faucher
Denise Lorraine Acossano Represented By John D Faucher
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20
Docket 7
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
11:00 AM
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Pro Se
RU, LLC Pro Se
Michael Criscione Pro Se
FIrst American Title Company Pro Se
Dos Cabezas Properties, LLC Pro Se Criscione-Meyer Entitlement, LLC Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20
Docket 43
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the
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MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr
11:00 AM
Trustee(s):
Christian T Kim
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20
Docket 1
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service re another summons (adv. dkt. 16)
In response to the Defendants' argument in their Motion to Dismiss (adv. dkt. 11) that Erica Martin was not served with the Trustee's Complaint (adv. dkt. 1), the Trustee stated that Erica Martin would be served with a new summons. Adv. dkt. 15, p.3:13-15. Another summons was issued on 2/4/20 (adv. dkt. 16) and at the hearing on 2/18/20 the Trustee represented that this summons had been served; but as of the drafting of this tentative ruling, no
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written proof of service has been filed on the docket. The Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The new summons provides that the parties were required to file a joint status report no later than 14 days before this status conference (3/24/20).
As of the drafting no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
Failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate
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nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
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Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
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Adv#: 2:19-01156 Gonzalez v. Karen et al
fr. 7/30/19, 9/24/19, 10/29/19, 12/10/19, 12/17/19, 1/14/20, 02/18/20
fr. 4/7/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David M. Karen Represented By Keith S Dobbins
DK Law Group, LLP Represented By Keith S Dobbins
Plaintiff(s):
Rosendo Gonzalez Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
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Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20
Docket 1
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 2:00 p.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint? If so, Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint
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checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The summons provides that the parties must file a joint status report no later than 14 days before the hearing (3/24/20). Adv. dkt. 2, p.2. As of the drafting of this tentative ruling, no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. If the summons and complaint have been served then failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v.
Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
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Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Preliminary Issues
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Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint?
Status report
The summons (adv. dkt. 2) provides that a joint status report must be filed by the parties no later than 14 days prior to the status conference (2/18/20). As of the drafting of this tentative ruling, no status report has been filed.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Standard Issues
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
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Deadlines: This adversary proceeding has been pending since
12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/24/20.
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
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Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
11:00 AM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20
Docket 332
Tentative Ruling for 5/12/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (dkt.485). For ease of reference, the following abbreviations are relevant to today's hearing:
AttitudeCase (Case No. 2:19-bk-10552-NB) (calendar no. 6, 5/12/20 at 11:00 a.m.)
Trustee-Aston-1 (Adv. No. 2:19-ap-01517-NB) (calendar no. 7, 5/12/20 at 11:00 a.m.)
Trustee-Aston-2 (Adv. No. 2:19-ap-01516-NB) (calendar no. 9, 5/12/20 at 11:00 a.m.)
MacCase (Case No. 2:16-bk-21559-NB) (this calendar no. 10, 5/12/20 at 11:00 a.m.)
TimeshareCase (Case No. 2:19-bk-22321-NB) (calendar no. 11, 5/12/20 at 11:00 a.m.)
Current issues
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Status Conference Trustee-Aston-2
The Revised Tentative Ruling for 4/7/20 in this matter provided in
relevant part:
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint? If so, Trustee is directed to file a proof of service evidencing such service no later than 4/10/20. [Revised Tentative Ruling for 4/7/20, Section (A)(1)].
As of the drafting of this tentative ruling, no proof of service has been filed. The Trustee is directed to address whether the summons and complaint was timely served.
Timeshare Motion for Reconsideration (TimeshareCase, dkt. 45) The parties should be prepared to address the issues raised by (i) the
Motion for Reconsideration, and (ii) this Court's order setting the Motion for Reconsideration for hearing (dkt. 46).
Dates/deadlines
Continue all matters on calendar for today to 6/30/20 at 11:00 a.m., with no status reports required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
11:00 AM
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Glossary
For consistency in orders and decisions - past and future - this Court will attempt to use the following abbreviations. This Court intends to memorialize these abbreviations on the docket after this hearing date.
Parties
David MacMillan ("MacMillan") Cynthia Barrett Martin ("Martin")
William Brownstein, Esq. ("Brownstein") Erica Martin ("Erica Martin")
Glenn Chaffin ("Chaffin") David Karen, Esq. ("Karen")
Attitude Marketing, Inc. ("Attitude")
Wyndham Vacation Resorts, Inc. ("Wyndham") Aston Business Solutions, Inc. ("Aston") Accelerated Capital Group, Inc. ("Accelerated") Trustee Rosendo Gonzalez ("Trustee") Florance Communications, Inc. ("Florance") Timeshare Relief, Inc. ("Timeshare")
Proceedings
In re David MacMillan, 2:16-bk-21559-NB ("MacCase")
In re Cynthia Barrett Martin, 2:17-bk-11588-NB ("MartinCase")
In re Attitude Marketing, Inc., 2:19-bk-10552-NB ("AttitudeCase") In re Timeshare Relief, Inc., 2:19-bk-22321-NB ("TimeshareCase") Wyndham Vacation Resorts, Inc. v. David MacMillan and Cynthia
Barrett Martin, 2:17-ap-01229-NB ("Wynd-Mac-Adv")
Wyndham Vacation Resorts, Inc. v. Cynthia Barrett Martin, 2:17- ap-01551-NB ("Wynd-Martin-Adv")
Rosendo Gonzalez v. David W. MacMillan et al., 2:17-ap-01545-NB ("Trustee-Adv")
Rosendo Gonzalez v. Aston Business Solutions, Inc. et al., 2:19- ap-01517-NB ("Trustee-Aston-1")
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Rosendo Gonzalez v. David Karen and DK Law Group, LLP, 2:19- ap-01156-NB ("Trustee-Karen-Adv")
Rosendo Gonzalez v. David W. MacMillan and Cynthia B. Martin, 2:17- ap-01485-NB ("Trustee-Mac-Adv")
Rosendo Gonzalez v. Aston Business Solutions, Inc. et al., 2:19- ap-01516-NB ("Trustee-Aston-2")
Rosendo Gonzalez v. David M. Karen, 2:19-ap-01156-NB ("Trustee- Karen-Adv")
Calendaring
Continue the following matters to 5/12/20 at 11:00 a.m., with no status reports required:
Status Conf., AttitudeCase (calendar no. 6, 4/7/20 at 11:00 a.m.) Status Conf., Trustee-Aston-1 (calendar no. 8, 4/7/20 at 11:00 a.m.) Status Conf., MacCase (this calendar no. 9, 4/7/20 at 11:00 a.m.) Status Conf,, Trustee-Karen-Adv (calendar no. 11, 4/7/20 at 11:00
a.m.)
Status Conf., Trustee-Aston-2 (calendar no. 12, 4/7/20 at 11:00 a.m.)
Current issues
Wyndham's Motion For Sanctions (TimeshareCase, Case No. 2:19- bk-22321-NB, dkt. 26), (see also dkt. 30, 31, 32, 36, 37, 39)
Award Wyndham/K&L Gates LLP $32,204.25 in fees and $0 in costs, payable jointly and severally by Mr. Brownstein and Mr. MacMillan (see dkt. 34, p.2:10-14) within 10 days of entry of an order granting the Sanctions Motion, for the reasons stated in the tentative ruling for calendar no. 5 (4/7/20 at 11:00 a.m.).
Defendants' Motion to Dismiss Trustee's Complaint (Trustee-Adv-2, 2:19-ap-01517-NB, the "MTD," adv. dkt. 11) and Trustee's Opposition (adv. dkt. 15)
Deny the MTD for the reasons set forth in calendar no. 7 (4/7/20 at 11:00 a.m.).
Order to Show Cause (the "OSC," MacCase, Case No. 2:16- bk-21559-NB, dkt. 428)
This Court issued the OSC; Florance did not respond. The docket and
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records of prior hearings reflect continuances to assess what documents Florance belatedly produced. The docket does not reflect any further activity.
The tentative ruling is to direct Wyndham, within seven days after this hearing date, to lodge a proposed order holding Florance in contempt, but not to take any further action at this time, and to reserve jurisdiction in the event that any party in interest seeks further relief on this matter (e.g., sanctions, or evidentiary presumptions based on any failure to produce discovery).
Meanwhile, the tentative ruling is to take this matter off calendar.
NB)
Status Conference: Trustee-Karen-Adv (Case No. 2:19-ap-01156-
At the 2/18/20 hearing, this Court continued this status conference to
ensure that the order approving the parties' settlement would be issued. While an order approving the settlement was issued in the AttitudeCase (2:19-bk-10552-NB, dkt. 142), no separate order was lodged providing for dismissal of the adversary proceeding.
The tentative ruling is to continue this status conference as set forth above in section "(2)" of this tentative ruling to ensure that a proposed dismissal order is lodged by the Trustee in the Trustee-Karen-Adv. If such an order is issued, the continued hearing on this status conference will come off calendar.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[No tentative ruling was posted for 1/14/20 or 2/18/20] [PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By
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Trustee(s):
Robert S Altagen Lamont R Richardson
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
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Docket 45
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Debtor(s):
TIMESHARE RELIEF, INC. Represented By
William H Brownstein
Trustee(s):
Wesley H Avery (TR) Pro Se
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Mortgage, Inc., and Best Alliance Foreclosure and Lien Service Corp fr. 4/7/20, 05/0520
Docket 141
Debtor(s):
Sharyl Gwen Bloom Represented By Alan D Irwin
Movant(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
1:00 PM
Docket 143
Please see the tentative ruling for the status conference (Calendar no. 2, 5/12/20 at 1:00 p.m.).
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
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11/12/19, 12/10/19, 1/28/20, 3/3/20, 5/5/20
Docket 7
Tentative Ruling for 5/12/20:
Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
Law Offices of Michael J. Berger's ("Applicant") Third Interim Fee Application (dkt. 143, the "Application"), no opposition is on file
Approve the Application and allow Applicant's request for $13,280 in fees and $338.80 in expenses, for a total award of $13,618.80.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan (dkt. 132)/Disclosure Statement (dkt. 131)*: Combined hearing on adequacy of disclosure statement and plan confirmation
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scheduled for 7/14/20 at 1:00 p.m. (dkt. 150).
Continued status conference: 7/14/20 at 1:00 p.m., concurrent with other matters. Brief status report due 6/30/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
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Docket 62
Please see the tentative ruling for the status conference (Calendar no. 4, 5/12/20 at 1:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
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Docket 6
Tentative Ruling for 5/12/20:
Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor’s motion to void lien (dkt. 62, 63, 65, 66, 77), U.S. Bank’s opposition (dkt. 79), Debtor’s reply (dkt. 87) and request for judicial notice (dkt. 88)
Deny the motion for each of the alternative the reasons stated by U.S. Bank in its opposition (dkt.79), except the due process argument.
In addition, and alternatively, Debtor’s passing reference in the motion papers to possible grounds for avoidance (e.g., §§ 363, 506 or 522), without citation to applicable authority or analysis as to how those sections are satisfied by the facts of this case, is insufficient to carry Debtor’s burden of proof. See e.g. Hamilton v. Youngblood, 2013 Bankr. LEXIS 1025, at *12 (9th Cir. BAP Feb. 21, 2013) ("a skeletal argument does not preserve a claim").
The tentative ruling is to deny Debtor's request for judicial notice (dkt.88) because additional evidence is not permitted in reply papers, and no exception has been argued or established. In addition, Debtor has not established that the evidentiary issues for which Debtor introduces the
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documents are an appropriate subject for judicial notice. Alternatively, the documents at issue would not change the tentative ruling on the merits.
Proposed order: U.S. Bank is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 6/2/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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Current issues
Cash collateral & budget motions
Debtor’s counsel confirms that there is a tenant in Debtor’s rental property who is paying $11,000/month in rent (dkt. 39, p.1:22-2:3 & Ex.A) and that Debtor is now living with her son and contributing towards general household expenses (dkt. 47, p.2:9-15). Debtor should be prepared to address whether a cash collateral motion is necessary, in view of her receipt of rental income.
The tentative ruling is no later than 5/11/20 Debtor must file and serve
a cash collateral motion, if one is required, (b) a budget motion as required by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), and (c) an amended schedule G identifying the lease.
Amended Bankruptcy Schedule I remains deficient (dkt. 60) Debtor's Amended Bankruptcy Schedule I still lists rental income in line
8h, instead of line 8a, and Debtor has not complied with the 4/10/20 deadline this Court previously set for Debtor to attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income (as expressly required by line 8a) – e.g. mortgage payments, real property taxes, insurance, maintenance. This Court notes that Amended Bankruptcy Schedule J does include an attachment that lists certain property expenses, but this is not sufficient.
The tentative ruling is that Debtor is directed to file an amended Bankruptcy Schedule I no later than 5/11/20.
March Monthly Operating Report ("MOR") (dkt. 55)
Debtor’s March MOR does not appear to accurately reflect Debtor’s monthly income and expenses for the period from 3/9/20 to 3/31/20 or otherwise explain why more information could not provided. The tentative ruling is that Debtor is directed to file an amended March MOR no later than 5/11/20.
Application to employ special litigation counsel (dkt. 25), UST’s objection (dkt. 28), amended application (dkt. 29), notice of hearing (dkt. 40), declaration (dkt.47), no opposition to amended application is on file
This Bankruptcy Court continues to have serious doubts whether an
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objective cost/benefit analysis would justify hiring counsel at $795.00/hr. to pursue the claims described in the amended application and other papers. From what this Bankruptcy Court knows of the litigation, this Court is inclined to share some of the principal defendant's bewilderment:
USB is bewildered at Debtor’s endgame here. [T]he Debtor is
attempting to procure the Property without having to pay back the loan that she admits to receiving. It is not as if USB recorded a deed of trust on the Debtor’s Property by mistake and the loan proceeds went to another property owner. It is sad to see that the
Debtor has spent hundreds of thousands of dollars on [this litigation]. [Dkt.79, p.9:23-28, n.4]
Nevertheless, (i) it appears that unsecured creditors have nothing to lose: either the litigation will succeed and they will have some hope of recovery, or it will fail and they will not be any any worse situation - they will receive the same as if the litigation were not pursued: nothing (see dkt.47); (ii) despite notice to creditors (dkt.40) no objection to the amended application has been received; (iii) there may be aspects of the litigation that this Bankruptcy Court does not understand; and (iv) perhaps Debtor is gaining some benefit by deferring any ultimate adverse judgment and/or the possibility of any ultimately favorable judgment or settlement. Therefore the tentative ruling is to grant the amended application, subject to the standard employment provisions in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), and further subject to a deadline of 5/11/12 for Debtor's general bankruptcy counsel to file a declaration confirming that counsel has delivered a copy of this tentative ruling to Debtor, so that she is fully informed of this Court's concerns.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/12/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required by counsel for the debtor and by the debtor themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Lack of prosecution of this case
Debtor's status report suggests that no budget motion is required, despite the fact that the posted Procedures of Judge Bason require one (see www.cacb.uscourts.gov under Judges). Debtor explains that "[n]o rents have been collected and we don't know if the tenant is going to pay" and "[e] xpenses are minimal and go to upkeep." Dkt.27, p.3, item B.2.
If the tenant is not paying rents, why do the Status Report and the docket not reflect efforts to evict the tenant and/or collect the rent? In addition, if there is a tenant, why does the Status Report state (dkt.27, p.7) that there are no leases? If there is no written lease, and the tenancy is month-to-month, that should have been explained, and it would seem to be all the more reason why the tenant promptly should either pay rents or be evicted. It has already been nearly a month since the petition date of 3/9/20, with no apparent action.
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The tentative ruling is to set a deadline of 4/10/20 for Debtor to file a
declaration addressing the foregoing issues.
Schedules I and J are deficient (dkt. 17)
Debtor's Schedule I identifies $11,000 in monthly rental income from the Robin Drive property, but Debtor did not attach a separate statement showing gross receipts, ordinary and necessary business expenses, and the total monthly net income (as expressly required by line 8a) - e.g. mortgage payments, real property taxes, insurance, maintenance. Even if those things are not currently being collected/paid, the form directs Debtor to state whether there is any anticipated change in future, and the tentative ruling is to direct Debtor to set forth in detail her projections for all of these things.
Additionally, Debtor's Amended Schedule J is virtually blank. Debtor explains that all of Debtor's expenses are being paid by Medicare, but (a) Debtor does not identify any medicare income on Schedule I and (b) that still does not explain the failure to list whatever expenses are being paid on Debtor's behalf.
The tentative ruling is that Debtor is directed to file amended schedules I and J no later than 4/10/20.
Schedule D (dkt.17, at PDF pp.21-22)
Debtor apparently assumes that she has a 100% chance of succeess in her nonbankruptcy litigation, because she asserts that there are no liens at all on her Robin Drive property. The tentative ruling is that this is flagrantly contrary to Debtor's obligation to list all claims, even if those claims are disputed (or contingent, or unliquidated). The tentative ruling is to set a deadline of 4/10/20 for Debtor to file an amended Schedule D listing the disputed lien and its dollar amount.
Proposed special counsel, and cost/benefit analysis
The tentative ruling is to set for hearing Debtor's application to employ special counsel, the objection thereto, and the amended application (see dkt. 26, 28, 29). The tentative hearing date is concurrent with the continued status conference (see part "(2)" below).
As this Court understands the pending nonbankruptcy litigation, several actions have been designated as "related" by the State Court(s), and there is a pending appeal that is set for oral argument later this month. The
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principal issue appears to be whether a mortgagee's deed of trust, that at least initially had an incorrect and/or missing property description, was sufficient to create (a) a lien as against Debtor and (b) inquiry or other effective notice as against third parties, when it is undisputed that the deed of trust was recorded in the real estate records, and when presumably it was included in the grantor/grantee index under Debtor's name. It appears that the trial court(s) have ruled against Debtor.
With this background, this Court reminds Debtor and her general bankruptcy counsel that, given Debtor's duties as a trustee for the benefit of creditors, she has an obligation to make a cost/benefit analysis regarding the litigation, and also has a duty to monitor proposed special counsel. This Court notes that proposed special counsel is not disinterested - she has a substantial prepetition claim - and although there is no requirement in 11
U.S.C. 327(e) of disinterestedness, there is still a requirement that proposed special counsel not "hold any interest adverse to the debtor or to the estate with respect to the matter on which such attorney is to be employed."
In addition, this Court takes judicial notice that, depending on the facts (which are unknown to this Court), sometimes debtors have nothing to lose by pursuing "long shot" litigation, but creditors have everything to lose. For example, a hypothetical debtor might have little or nothing to lose if they are already insolvent, because either the value of their property will go to pay the secured creditor(s), or it will go to pay unsecured creditors, so they have no net financial loss either way; but if the long shot litigation pays off they can keep their home. This Court emphasizes that this is only one scenario, and this case might be very different. But there is not enough information in the record at present for creditors to be able to make an informed decision whether or not Debtor has financial incentives to act in their best interests.
The tentative ruling is to set a deadline of 4/10/20 for Debtor to file, and serve on all parties in interest including the United States Trustee via
U.S. mail, a notice of the hearing on the employment application, which notice must include a copy of this tentative ruling, and must provide notice of a deadline of 4/21/20 for any response, and 4/28/20 for any reply. In addition, the tentative ruling is that, concurrent with the notice, Debtor must file and serve declaration(s) addressing the foregoing issues.
Debtor's emergency motion for order confirming that stay applies to pre-petition state court litigation (dkt. 30, the "Stay Motion"), application for
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hearing on shortened time (dkt. 31) and order thereon (dkt. 32)
There is no tentative ruling. The parties should be prepared to address the issues raised in the tentative ruling for the Stay Motion (Calendar no. 1.1, 4/7/20 at 1:00 p.m.).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/5/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
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Docket 34
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/16/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor's principal(s) themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements to appear. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report
Per this Court's scheduling order (dkt. 12), Debtor was required to file a status report no later than 14 days before this hearing (3/17/20). As of the drafting of this tentative ruling, no status report has been filed. Why not?
Debtor's emergency cash collateral motion (dkt. 23)
Grant on a final basis, on the same terms and conditions previously ordered (dkt. 33)
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one
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has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C.
Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/12/20 at 1:00 p.m., status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's emergency cash collateral (dkt. 23)
Grant on an interim basis, subject to (i) resolution of certain preliminary issues and (ii) certain conditions, as set forth in calendar no 1, 3/17/20 at 1:30 p.m.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one
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has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C.
Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., status report due 3/17/20 per order setting initial status conference (dkt. 12)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
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Docket 6
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Garcia v. Myllyla (Adv. No. 2:20-ap-01098-NB)
The tentative ruling is to reschedule this matter from 11:00 a.m. to 1:00
p.m. on the same date as the continued status conference, to be concurrent therewith (see below).
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 6/16/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Continue as set forth below. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's February MOR (dkt. 46), and has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 5/12/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Current issues
Debtor's budget motion (dkt. 34) and supplemental declaration in support (dkt. 38)
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Employment application (dkt.21) and supplemental declarations in support (dkt. 39)
Grant, and approve the employment application on the terms set forth in this Court's revised tentative ruling for 2/18/20, reproduced below, Section (1)(a).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of the tentative rulings for 3/3/20 and 2/28/20, thereby incorporating them as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 4/7/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Employment application (dkt.21)
Debtor has filed Nat. Form B2030 (dkt. 23) and an amended SOFA (dkt. 24) disclosing that a retainer of $10,000 was paid by one James G. Lewis, who is described as one of Debtor's unsecured creditors. The tentative ruling is to set a deadline of 2/25/20 for Debtor and Mr. Lewis each to file and serve on the Office of the United States Trustee their declarations addressing the ethical concerns involved whenever a retainer is paid by a third party. See In re 9469 Beverly Crest, LLC (Case No. 2:19-bk-20000-NB, dkt.44). The tentative ruling is to set the employment application for hearing concurrent with the continued status conference (see below).
As for other issues raised in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to cap costs for photocopying and other expenses per the applicable guidelines (see dkt.21, at PDF p.20), to authorize late payment charges only from when fees and costs are authorized and directed to be paid by this Court (see id., at PDF p.21), and to include the other standard provisions set forth in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Budget motion (as amended, dkt.34): This motion has been self- calendared for 3/3/20 at 1:00 p.m. There is no tentative ruling regarding that motion, but this Court notes (in anticipation of that hearing) that (i) Debtor lists a $750/mo. contribution from his son (dkt.34 at PDF p.9) but there is no contribution declaration on the docket; (ii) Debtor's MOR (dkt.35 at PDF p.7) states that going forward Debtor and his non-debtor wife will pay only their portion of the combined insurance premium for their vehicles and their children's vehicles, and that their children will be responsible for their own car loan payments and insurance, but there is no disclosure of how the insurance
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expense has been allocated; and (iii) Debtor's monthly income projected in the budget motion appears to be substantially lower than in prior years, based on a comparison with Debtor's Statement Of Financial Affairs ("SOFA") (dkt.24, line 4, at p.2), but there is no explanation why. (This Court also notes that the budget no longer includes $500/mo. of "support" payments "to mother-in-law and sister-in-law.")
Substantial equity in properties alleged to have been fraudulently transferred. As directed in the tentative ruling for 2/4/20 (reproduced below), the tentative ruling is to direct Debtor to disclose at the status conference the percentage ownership interest that Debtor had in Sunset and Cambria in the years prior to the alleged fraudulent transfers of those properties, and direct all parties in interest who appear to address the status of the nonbankruptcy litigation.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9)
(d) Continued status conference: 3/3/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
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Docket 6
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file by 8/18/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
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MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the status conference (Calendar no. 10, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition
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(dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
The tentative ruling is to overrule Debtor's evidentiary objections (dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
Although valuation is relevant, the tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
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Movant asserts that Debtor has shown bad faith, and that this is
"cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on
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3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
1:00 PM
4/7/20
Docket 49
Tentative Ruling for 5/12/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Compliance and reporting issues
Can creditors or this Court rely on anything Debtor says?
What is Debtor's business?
In the status report filed on 1/21/20 (the "Principal Status Report," dkt.65, p.2) Debtor asserted that her businesses were Hot Ginger, Inc. (although that apparently is not operating) and owning four rental properties. So it appeared that Debtor was a landlord.
There was no mention of any real estate development business. But Debtor's declaration of postpetition income at expenses (dkt.194, at PDF p.5), asserts that Debtor's business has been "turn-key" real estate development including prefabriacted section 8/veterans' housing. Debtor declares that the Covid-19 pandemic has shut down that business, but the pandemic did not shut down any businesses until after January, so why was that business not mentioned anywhere in the Principal Status Report?
And now Debtor reveals that she has started a new business as a
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broker of Personal Protective Equipment ("PPE"). She has not provided any notice to creditors of this new business, nor has she obtained authorization from this Court for starting transactions out of the ordinary course of business (11 U.S.C. 363(b)). See dkt.188, p.3, and dkt.191, last page. Does Debtor have any necessary or appropriate licenses or insurance? What are the risks, expenses, and potential benefits? What happens if Debtor brokers
$1m of PPE for a local hospital and then fails to deliver that PPE? Is there potential liability for the bankruptcy estate?
Debtor lists "self-employment" gross income of $5,000.00/mo. with no expenses (dkt.184 at PDF p.9). What is that "self-employment" business? Is it the PPE business? Or the real estate development business? Or some other (undisclosed) business?
What are the income and expenses of Debtor's non-rental business(es)?
Debtor reports no expenses associated with her "self-employment" business (whatever that is). Can that be so?
Perhaps the lack of any self-employment or income taxes can be explained based on Debtor's unsupported assumption that she will receive tax refunds of $193,000.00 (dkt.194 at PDF p.3). But are there really no other business expenses: no telephone, internet, computer, printer, supplies, office space, etc.?
Given Debtor's assertion that she made such huge miscalculations that she over-paid past years' taxes to the tune of $193,000.00, what confidence can creditors or this Court have that her projected revenues and (lack of) expenses are accurate? On tax issues specifically, how can anyone have confidence that Debtor is taking appropriate deductions and paying appropriate taxes for whatever businesses she currently operates?
In the rental business, what are Debtor's income and
expenses?
Debtor's declaration of postpetition income and expenses (dkt.194, at PDF pp.7-8) lists $3,000.00/mo. of rental income for each of the "626" and "622" properties. But she reports actual income from the "626" property of
$2,800.00/mo. (dkt.188 at PDF p.8), and $-0- for the "622" property (dkt.188 at PDF p.9).
As for expenses, Debtor lists $0 for maintenance, repairs, real estate
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taxes, insurance, utilities, any gardener, or anything else at the Jefferson Plaza property, other than the mortgages. See dkt.194, at PDF p.6. The same is true for the "626" and "622" properties, except for $37.50/mo. for maintenance. See dkt.194, at PDF pp.7-8. How is that remotely realistic?
It also appears that, even if there were no expenses other than the mortgages, some of the properties might operate at a net loss. For example, the "626" property (the one with $3,000.00/mo. of alleged income and
$2,800.00 of actual income) apparently has a monthly mortgage expense of
$5,625.00 (dkt.188 at PDF p.10). How does it make sense for the bankruptcy estate to retain properties that appear to be a drain on income?
Perhaps in recognition of the need for more revenue, Debtor reports that the Jefferson Plaza rents/revenue may increase (dkt.194, p.2). Is that realistic? This Court takes judicial notice of economic projections that, in the wake of the Covid-19 closures of many restaurants and other businesses, landlords might be facing a difficult time attracting and retaining enough tenants. Is it realistic for Debtor to plan to raise rents?
What else is going unreported, and is unauthorized?
Debtor lists $36,171.94 in receipts from "insurance" (dkt.188 at PDF p.9), with no explanation. Was there a fire or some other damage that was insured? Did that occur pre- or postpetition? Will the insurance cover all repair costs or only part?
Debtor reveals expenditures of $15,000.00 for construction (dkt.188, at PDF p.11). Is that construction within the ordinary course of Debtor's business (in which case why was that business not disclosed?) or was it out of the ordinary course (in which case why did Debtor fail to provide prior notice and seek authorization under section 363(b))?
Debtor has explained that some restaurant meals and other expenditures are being paid by her non-debtor husband. Both the expense and the husband's reimbursement should appear on the monthly operating reports, but if the reimbursements are disclosed they were not immediately apparent to this Court.
What else is going on that is not disclosed and/or not authorized?
Conclusion regarding compliance and reporting
All of the foregoing deficiencies are on top of months of incomplete, inconsistent, and erroneous financial reporting, and unauthorized
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expenditures and use of cash collateral, as set forth in prior tentative rulings (reproduced below). Debtor, the Subchapter V Trustee, and counsel for the United States Trustee are directed to address at the hearing what remedies this Court should impose.
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.9, 5/12/20 at 1:00 p.m.)
The parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 6/16/20 at 1:00 p.m. Brief written status report due 6/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
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Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Inadequate status report (dkt.169)
Debtor's status report simply repeats what is on the docket. It does not address any of the issues raised at prior status conferences and noted below. The tentative ruling is that no fees should be charged for preparation of the status report.
Partially adequate Disclosures
This Court has reviewed Debtor's supplemental disclosures about her non-debtor husband's finances and related matters (dkt. 145, 146, 147, 148, 158, 159, 167) in response to this Court's order issued on 3/4/20 (dkt. 133). The tentative ruling is that the disclosures are partially adequate.
On the one hand, Debtor has provided a copy of the premarital agreement (dkt.146, Ex.1), which is very important, and has also filed amended bankruptcy schedules I, J and D, as well as a statement of postpetition income and expenses, and Monthly Operating Reports ("MORs"). On the other hand, these disclosures are incomplete, unclear, and internally inconsistent.
Incompleteness
The incompleteness includes that, as Debtor acknowledges, she has yet to provide an amended Statement of Financial Affairs ("SOFA") because her family is dealing with the loss of a close family member (dkt.146, p.3, para.7 & 9). It is unclear what else might be missing: creditors and this Court cannot know what they and this Court do not know. The tentative ruling is to set a deadline of 4/21/20 to file the amended SOFA and any other documents that were required under this Court's prior order (dkt. 133).
Lack of clarity The MORs are unclear:
There are two business accounts (-8997 and -9003) but which account relates to which property/business?
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Why are there only two business accounts when
Debtor apparently shares in the income from the Jefferson Plaza business and has four properties (535 N Fuller, 636 N Laurel, 622 E 35th, and 626 E 35th) at least two of which are rental properties?
Why are there two personal checking accounts
(-9011 and -6492)?
Why is one account overdrawn (account -6492 shows
a balance of -$437, dkt.165, at PDF p.14)?
Debtor's January MOR vaguely lists many entries as "Household." From other information about some of these "Household" expenses, it is not clear that they are appropriate for a debtor in possesion: for example, $350 for "Your Hair By Ellie" on 1/31/20 (dkt.165, p.12, last entry) and $390.92 for "Sephora" on 1/21/20 (dkt.165, p.11, 3d line from bottom). True, Debtor alleges that there is equity in various properties, but that is far from certain and she might well be insolvent. In addition, the MOR lists a lot of restaurant meals (dkt.165, pp.11-12), and again, it is not clear that this is appropriate budgeting for a debtor in possession. The tentative ruling is to set a deadline of 4/21/20 for Debtor to file amended MORs that address these issues.
Debtor's alleged equity in her various properties is also far less clear than it should be. Although that information probably can be pieced together from various other documents, the tentative ruling is to set a deadline of 4/21/20 for Debtor to file a declaration with an attached spreadsheet showing, for each property or business, Debtor's estimate of value, the source of that estimate, the liens against each property (listed by lienholder, in order of seniority), the dollar amount of the claim secured by that lien (according to Debtor and, alternatively, according to the holder of the lien), and the sources of those data.
Internal inconsistency
One internal inconsistency is that the latest Bankruptcy Schedules I&J list $16,000 as Debtor's net income from rental properties/businesses (dkt.159, p.2, line 8a) but the attached statements for each property/business list $10,000 of net income (consisting of $10,000 from Jefferson Plaza, LLC,
$0 from 622 E 36th St, and $0 from 626 E. 36th St.). Dkt. 159, pp.5-7. What is the source of the other $6,000?
This Court has considered the possibility that Debtor has mixed up gross and net income. But that does not work either because the gross
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income is $22,700 ($16,700 + $3,000 + $3,000 = $22,700). Dkt. 159, pp.5-7.
The latest declaration of postpetition income and expenses (dkt.158) has yet more numbers that are different, but no explanation and no attached disclosures of gross income, expenses, and calculation of net income.
The tentative ruling is to set a deadline of 4/21/20 for Debtor to file (A) further amended Bankruptcy Schedules I and J and (B) a further amended statement of postpetition income and expenses, with a complete explanation of any differences between the former and the latter.
Conclusion as to Debtor's financial disclosure
How can creditors and this Court rely on Debtor to make accurate financial reporting of anything in this case if even basic information is missing, unclear, or incorrect? The tentative ruling is to give Debtor one more opportunity for complete, candid, and clear financial disclosures.
No discernable progress since last hearing
At a hearing on 3/10/20, this Court noted that the docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case, but took no action other than to caution Debtor to be cognizant of the warnings that this Court set forth on the record at the hearing on 3/3/10. The docket still does not reflect any activity. Why not?
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Debtor's motion for order declaring judgment liens void as violations of the automatic stay and for compensatory sanctions (dkt. 122, the "Sanctions Motion"); National Commercial Recovery, Inc.'s ("NCR") opposition (dkt. 142), debtor's reply (dkt. 157)
Deny.
The tentative ruling is that Debtor is correct that the automatic stay in her prior bankruptcy case applied when the abstracts were recorded, so the
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recording was void. But NCR is also correct:
that there is no evidence Debtor gave it notice of her bankruptcy filing, which would entitle it to seek to retroactively annul the stay (see In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir. 2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay)), and
that, although the better course may have been for NCR to file a motion seeking retroactive annulment, NCR was not taking any affirmative steps (it was not doing things held to violate the automatic stay, like terminating an executory contract - it was doing nothing, which preserved the status quo). That is less than what has been held, in an analogous situation involving preservation of the status quo, not to violate the automatic stay. See Citizens Bank of MD v. Stumpf, 116 S.Ct. 286 (1995). Therefore, the tentative ruling is that as a legal matter, NCR did not have any duty to record releases of its liens, and did not violate the automatic stay by declining to do so.
On the equities, to the extent equitable considerations are relevant, why should NCR have to pay to litigate these issues, instead of Debtor? If the lien were truly shown to be an obstacle to anything Debtor needs to accomplish, it is more equitable to place the burden on Debtor to seek affirmative relief than it would be to place the burden on NCR to seek confirmation from this Court that it has no duty to release its liens.
Moreover, the tentative ruling is that Debtor's premise is flawed.
Debtor asserts that "if NCR's lien were allowed to remain" that "would prevent refinancing" and "crater the case ...." (dkt. 157, p.2:25-26). How so?
Debtor has not established why she could not obtain financing that primes NCR's junior lien (if that lien is adequately protected) under 11 U.S.C.
364. Alternatively, Debtor has not explained why a chapter 11 plan could not leave NCR's lien in place and pay it over time. In fact, Debtor allegedly intends to pay all creditors (not just NCR) 100% of their claims over time, so it is not clear that Debtor has to do anything regarding NCR's lien at this point. Is this litigation a good use of the bankruptcy estate's assets?
Proposed orders: If appropriate, the prevailing party is directed to lodge a proposed order on each of the foregoing motions via LOU
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within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling,
subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: 4/15/20 (per dkt. 171, 172)
Continued status conference: 5/12/20 at 1:00 p.m.. Brief written status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/10/20:
Appearances required.
Current issues
Debtor's amendment of bankruptcy petition to elect Subchapter V (dkt. 128)
On 3/2/20, Debtor amended her petition to elect Subchapter V. The parties should be prepared to discuss the effect of that amendment, including any appropriate dates and deadlines for such matters as the appointment of a Subchapter V trustee, the filing of an amended plan, and any other applicable procedures that this Court may need to set at this time.
No discernable progress since last hearing
The docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case. Given the short time since the last hearing, the tentative ruling is that this Court will not take any action based on that lack of discernable progress, but to remind Debtor to be cognizant of the warnings that this Court set forth on the record at the last hearing.
No corrected MOR
Debtor has not corrected the monthly operating report, which was not filed on the required form. See tentative ruling for 3/3/20 (reproduced below), item "(1)" "(b)". Why not?
No statement reflecting apparent increase in income?
Despite two reminders, Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Rulings for
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3/10/20 and 2/18/20 (reproduced below). Why not?
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94), Debtor's reply (dkt. 134), interim order (dkt.113)
Although this Court has concerns about whether Debtor's financial disclosures are accurate and complete (as set forth in various portions of this tentative ruling and prior tentative rulings), the proposed use of funds in the budget motion appears to be appopriate. Accordingly, the tentative ruling is to grant the motion on a final basis, subject to the following.
First, any approval is subject possible reconsideration once Debtor finally files her statement of postpetition income and expenses, and files the other documents directed by this Court (see dkt.133), or as other facts may come to light. Second, the budget must be adjusted to accommodate the request of East West Bank for Debtor to increase her proposed monthly mortgage payment to $5,643.86, which Debtor has agreed to do (dkt. 134). Third, any approval is subject to the parties' rights to seek further relief, including approval of any stipulation for adequate protection.
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on a final basis, on the same terms as stated in the order (dkt.114) granting the motion on an interim basis, and subject to the same caveats and conditions as set forth above regarding the budget motion.
Application to employ The Orantes Law Firm (the "Firm") (dkt. 72); statement of disinterestedness (dkt. 73); amended statement of disinterestedness (dkt. 82); Dec re non-opp (dkt. 98); order setting matter for hearing (dkt. 101)
The tentative ruling is to grant the application in part and deny it in part as follows.
Debtor seeks to employ the Firm pursuant to 11 U.S.C. 327, with compensation pursuant to 11 U.S.C. 330 at the following hourly rates for the Firm's attorneys: Giovanni Orantes: $695 and Luis A. Solorzano: $350 (dkt. 72, p.16). In determining the reasonableness of the proposed billing rates, 11 USC 330(a)(3)(B), (E) and (F) require this Court to consider, among other things, proposed counsel's hourly rates, any board certification or other demonstrated skill and experience in the bankruptcy field, and "the customary compensation charged by comparably skilled practitioners "
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Based on a review of rates charged by other bankruptcy professionals practicing before this Court as well as this Court's familiarity with proposed counsel's skills and performance in pending and past cases before it, the tentative ruling is to approve the Firm's employment, subject to Judge Bason's standard employment terms (available at www.cacb.uscourts.gov), but reduce the hourly rates that the Firm may charge to the following maximum dollar amounts, without in any way limiting the requirement that any rates charged and time spent still must be fully justified: Giovanni Orantes:
$475/hour and Luis A. Solorzano: $250/hour.
In addition, the tentative ruling is that any waiver of conflicts of interest is ineffective as against the bankruptcy estate. (A "debtor in possession," acting as a trustee for the benefit of creditors, cannot waive conflicts on behalf of those creditors.)
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The tentative ruling is to continue this matter again, to be concurrent with the continued status conference (see below), so as to be able to assess
whether Debtor has adequately prosecuted this case, including selling or refinancing one or more properties (if that is realistic) or otherwise demonstrating progress that has been sorely lacking to date, and (ii) Debtor's papers regarding her non-debtor husband's finances, which are due 3/18/20. See Order (dkt.133).
Meanwhile, the parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
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Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
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Debtor's Bankruptcy Schedules I and J provide very little information
about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the
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hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In
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addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 93
Please see the tentative ruling for the status conference (Calendar no. 11, 5/12/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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Docket 5
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Application to employ Lamb & Kawakami LLP as special counsel for real property matters (dkt. 93-95), Criscione parties' opposition (dkt. 99), Debtor's reply (dkt. 110), Criscione parties' unauthorized sur-reply (dkt. 119)
The proofs of service (dkt. 93, 94, 95) do not show service on the 20 largest creditors as required by LBR 2014-1(a)(2). The tentative ruling is to continue this matter to the same date and time as the continued status conference (see below) and direct Debtor to file and serve notice of the application on the 20 largest creditors and other interested parties via U.S. mail by 5/15/20.
The tentative ruling for the continued hearing is (i) to strike the unauthorized sur-reply and (ii) to grant the application for the reasons stated therein and in the reply, under 11 U.S.C. 327(e) (not 328), subject to (A) any responses by persons not previously served and (B) the standard conditions
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in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov). Alternatively, the tentative ruling is that, even if the sur-reply were considered, it would not alter the result.
Quash
Notice of Lodgment (dkt.117) of proposed Order on Motion to
Counsel for Dos Cabezas Properties, LLC and Criscio appear to have
confused a notice of lodgment with actual lodgment. The notice states that a proposed order was lodged; but this Court's electronic Lodged Order Upload ("LOU") system does not reflect any lodged order. Counsel is directed to lodge the proposed order, and coordinate with this Court's Clerk's Office including any technical support staff as needed.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 6/2/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20
Docket 7
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 14, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 26, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
1:00 PM
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
1:00 PM
Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Tentative Ruling for 5/12/20:
Continue to 6/30/20 at 1:00 p.m. to allow time for the parties to participate in a second round of mediation. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
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Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC ("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows. Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
(1) a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal
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quotation omitted).]
These elements are satisfied: (1) the motion was timely - the
proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14) are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court,
(5) the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
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Several of the Tucson factors weigh in favor of abstention. First, the
Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his
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claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Pro Se
RU, LLC Pro Se
Dos Cabezas Properties, LLC Pro Se Criscione-Meyer Entitlement, LLC Pro Se Michael Criscione Pro Se
1:00 PM
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
2:00 PM
Docket 70
Please see the tentative ruling for the status conference (Calendar no. 1.1, 5/12/20 at 2:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
2:00 PM
Docket 1
Tentative Ruling for 5/12/20:
The tentative rulings are set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
SARE Motion (dkt.70)
Le Elegant Bath, Inc. ("Elegant") has filed a motion to designate Holding a single asset real estate debtor (dkt. 70). See 11 U.S.C. 101(51B) and 362(d)(3). No opposition is on file.
The tentative ruling is to grant the motion insofar as designating Holding a "single asset real estate" debtor, because (i) it is undisputed that Holding's only asset is commercial real property located at 13832 Magnolia Avenue, Chino, CA 91710 (the "Property") (see 2:20-bk-11476-NB, dkt. 15,
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pp.4&6), which is real property that constitutes a "single property or project," and it is not residential property with fewer than four residential units; (ii) Holding generates substantially all of its income from the Property; (iii) Holding is not a family farmer, and (iv) Holding does not conduct any business on the Property other than that incidental to its ownership (see dkt. 72, p.19:9-10). In re Meruelo Maxxux Props., Inc., 667 F.3d 1072, 1076 (9th Cir. 2011); In re Hassen Imps. P'ship, 466 B.R. 492, 506-07 (Bankr. C.D. Cal. 2012).
Proposed orders: Elegant is directed to lodge a proposed order on the foregoing motion via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Debtor's motion to extend SARE deadline/exclusivity deadlines (dkt. 84, 85, 86, 87, the "Extension Motion"), OST (dkt. 82), Le Elegant Bath, Inc.'s opposition (dkt. 87)
This Court has granted the Extension Motion in part, by extending the deadline for Debtor to file a plan, and the related deadlines for exclusivity and solicitation of votes. See dkt.92. The hearing on the Extension Motion was continued to this date so that the parties could address any related issues, such as whether to require adequate protection payments. The tentative ruling is to take no further action on the Extension Motion, and take it off calendar, without prejudice to any party seeking to extend (or reduce) the applicable deadlines.
Monthly operating reports ("MORs") for Brass
At the last status conference this Court set a 4/28/20 deadline for Brass to file amended MORs addressing the issues set forth in the 4/21/20 tentative ruling (see below). As of the preparation of this tentative ruling, Debtor has not complied. The tentative ruling is to set a deadline of 5/15/20 for Brass to file (i) the amended MORs and (ii) a declaration addressing why they were not filed sooner.
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
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Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/19/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB); In re A Touch of Brass, Inc. (Case No. 2:20-bk-11555- NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-bk-11476-NB). This status conference addresses all three cases.
Chan Budget motion (2:20-bk-11409-NB, dkt. 44)
There is no tentative ruling. This Court is not persauded that it is appropriate to approve Debtor's proposed budget, which lists a negative net monthly income: ($2,684.80). Debtor should be prepared to address whether
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he anticipates either an increase in income or decrease in expenses in the near future.
Monthly operating reports ("MORs") for Debtor Anthony Chan Debtor Anthony Chan's Amended February MOR (Case No. 2:20-
bk-11409-NB, dkt.53, p.4) lists the number of postpetition payments not made to Bank of America at $0 but lists a very large dollar amount in the column for "Total Due" (presumably Debtor's estimate of the entire balance owed). This Court's understanding of the form is that Debtor should be listing the total postpetition payments that are due and unpaid, not the total balance. The United States Trustee ("UST") is requested to clarify this issue at the hearing, and state whether Debtor needs to file a further amended MOR.
In addition, the same MOR lists only a single entry for "food" ($983.15). The UST is requested to clarify whether food entries should be broken down into single items (each grocery bill, each meal at a restaurant, etc.).
In addition, although the MOR lists a single deposit and various expenses in an exactly equal total amount, the expenses are not reflected in the bank statement or any cash ledger or anywhere else. Is that because (i) Mr. Chan arranges for his employment compensation to equal his expenses exactly and (ii) the checks are either (x) drawn on the bank account of Mr.
Chan's employer (his company and co-debtor A Touch of Brass, Inc.), or (y) the checks are drawn on his own bank account but have not yet cleared as of the end of the MOR's period, or (z) some other explanation?
The tentative ruling is to set a deadline of 4/28/20 for Debtor to file and corrected MOR.
Inc.
Monthly operating reports ("MORs") for Debtor A Touch of Brass,
Debtor A Touch of Brass, Inc.'s Amended February MOR (Case No.
2:20-bk-11555-NB, dkt. 71, p.11) has a similar issue regarding postpetition payments. It removes the figures in the "Post-Petition payments not made (Number)" column, but there was no corresponding change to the "Total Due" column, so Debtor still reflects missed postpetition payments to
"CNC Associates" and "Toyota Financial Services" in an amount totaling
$26,018.86.
Debtor is directed to address whether a further amended MOR should address this issue. In any event, Debtor is directed to address (i) what
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Debtor's financial viability is, (ii) what is the nature of the missed postpetition payments, and (iii) how does its inability to pay these debts impact its ability to reorganize?
Additionally, Debtor did not attach copies of bank statements to this amended MOR. The tentative ruling is to waive that omission in this instance, since those documents are attached to the original February MOR (dkt. 68), but caution Debtor that future MORs should attach bank statements.
The tentative ruling is to set a deadline of 4/28/20 for Debtor to file and corrected MOR.
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/2/20 at 1:00 p.m. Brief written status report due 5/19/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden
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fr. 5/6/20
Docket 0
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the Chan status conference (Calendar no. 1.1, 5/12/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
2:00 PM
Docket 1
Debtor(s):
Samini Cohen Spanos LLP Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
2:00 PM
Docket 31
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including the March MOR (dkt. 125) and amended January MOR (dkt. 130), and has no issues to raise sua sponte.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 6/30/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required by any counsel who wish to be heard, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Objection to the Sale Motion
At the hearing on 3/24/20 this Court was persuaded to continue this matter to 4/7/20. The tentative ruling remains unchanged: to overrule the objection objection (dkt.104) filed by the Estate of Maynard Poynter, Patricia Poynter, Leah Poynter, Adam Poynter, Sean pointer and Melissa O’Donnel (collectively "Poynter"). The parties should be prepared to address the issues raised in that objection and in Debtor's reply papers (dkt.110-12).
Service of the Order Continuing Case Status Conference And Hearing On Sale Motion (the "Scheduling Order," dkt. 115)
At the 3/24/20 hearing, this Court set a deadline of 3/25/20 for Debtor to serve, via overnight mail or personal delivery, the Scheduling Order on parties not previously served with the Sale Motion (dkt. 96) per Rule 7004 (Fed. R. Bankr. P.) who are directly affected by the Sale Motion, and to file a proof of service evidencing such service. Debtor timely served the
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Scheduling Order and a notice of the continued hearing and filed a proof of service. See dkt. 117, 118.
The docket does not reflect any oppositions or other responses to the relief requested by Debtor in the sale motion and accompanying papers. The tentative ruling is that any objections by any parties other than Poynter are waived, and alternatively forfeited.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 5/12/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/24/20:
Appearances required by any counsel who wish to be heard, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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Current issues
No witnesses required
No witnesses need appear (either by telephone or in person), because no evidentiary issues are presented at this time.
Objection to the Sale Motion
The tentative ruling is to overrule the objection objection (dkt.104) filed by the Estate of Maynard Poynter, Patricia Poynter, Leah Poynter, Adam Poynter, Sean pointer and Melissa O’Donnel. The parties should be prepared to address the issues raised in that objection and in Debtor's reply papers (dkt.110-12).
Service of the Sale Motion on certain other persons
Debtor’s proof of service ("POS," dkt. 101) appears insufficient. The tentative ruling is that the hearing will have to be continued to provide notice to persons who have not received adequate notices.
For example, Debtor proposes to sell/assign to Mariculture a license issued by the U.S. Army Corps of Engineers (the "Corps") (see dkt. 111, Ex.1(ii) (APA), Schedules 1.1 & 1.3, at PDF pp.35 & 41). But there are two problems with any attempted service on the Corps:
No service on the Corps itself. The Corps is listed on the proof of service with its mailing address crossed out and the notation "1/2/20 Unable to Forward" (dkt. 101, p.5, middle of right column); and
No service on U.S. Attorney and Attorney General. The Corps appears to be an "agency of the United States" so a copy of the motion papers should have been "addressed to the civil process clerk at the office of the United States Attorney" for this district (whose address is available on this Court’s website, www.cacb.uscourts.gov under "Government Units’ Mailing Address," section 2.4(a)) and to the "Attorney General of the United States at Washington, District of Columbia" (same, section 2.4(b)). Rule 7004(b) (4)&(5) (emphasis added) (incorporated by Rule 9014(b)).
There appear to be similar problems with service on other entities. For example, although Debtor’s sale materials (dkt. 100, at PDF p.16) identify a "National Oceanic and Atmospheric Administration (NOAA) Aquaculture Permit dated February 28, 2017" as one of the assets to be sold, and Schedules 1.1 and 1.3 of the APA (dkt. 111 at PDF pp. 35 & 41) also reference "permits and consents and conditions" imposed by NOAA, the POS
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does not appear to include NOAA or its representative. Similar issues appear to apply regarding the California Coastal Commission, Titan Steel Structures, and other parties to various executory contracts. See dkt. 111, Ex. 1(ii) (APA), Schedule 1.3, at PDF p. 41, and see Rule 7004(b)(3) (service on organizations) and (b)(6) (service on States, or governmental organizations thereof).
The tentative ruling is that it is appropriate to shorten time under Rule 9006(c) because of the exigent circumstances of Debtor having no funds to continue operating beyond a very short period of time. See dkt. 47, p.7:25; dkt. 79; dkt. 60; dkt. 93; dkt.109. The evidence before this Court is that Debtor’s assets will lose substantial value if not all value if Debtor is unable to pay for care of its mussels and other essential tasks. See dkt. 96,
pp.22:13-24:18; dkt. 99.
Based on the foregoing, the tentative ruling is to set the following deadlines: March 25, 2020 for Debtor to serve via overnight mail or personal delivery any entities whose interests are directly affected by the Sale Motion and who have not already been served in compliance with Rule 7004 (or who have waived such service), and to file a proof of service; April 3, 2020 for those entities to file and serve any response; and April 6, 2020 at noon for any reply papers. A continued hearing is tentatively set for April 7, 2020 at 2:00 p.m.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 4/7/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's status report (dkt. 103), and has no issues to raise sua sponte. The parties are directed to address any issues they have.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 3/24/20 at 2:00 p.m., with no status report required, per this Court's scheduling order (dkt. 87).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/7/20:
Appearances required by counsel for the debtor and by the debtor's principal.
Current issues
This Court has reviewed Debtor's status report (dkt.39). There is no tentative ruling but parties in interest may address scheduling and procedures for Debtor's anticipated DIP financing motion, 363(f) sale motion, etc.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 2/4/20 at 1:00 p.m., brief status report due 1/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 78
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 82).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association Represented By Matthew R. Clark III Sean C Ferry
April Harriott Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 40
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Kenya B. Simmons Represented By Barry E Borowitz
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANKUNITED N.A.
vs DEBTOR
Docket 49
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) whether they will agree to a forebearance agreement (see the debtor's response, dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Gina Marie Darden Represented By Steven A Alpert
Movant(s):
BankUnited N.A. Represented By Christopher Giacinto Diana Torres-Brito Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOANCARE, LLC
vs DEBTOR
Docket 33
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Malcolm E. Williams Represented By Donny A Ekine
Movant(s):
LoanCare, LLC Represented By Christina J Khil Nathan F Smith Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CMG MORTGAGE, INC.
vs DEBTOR
Docket 42
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 45).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Guadalupe Rodriguez Represented By Robert T Chen
Movant(s):
CMG Mortgage, Inc. Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NATIONAL ASSOC
vs DEBTOR
Docket 150
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-20473-NB) was dismissed (on 9/4/19) within one year before this case was filed (on 10/25/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained (see dkt. 67). The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In
10:00 AM
re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sharyl Gwen Bloom Represented By Alan D Irwin
Movant(s):
JPMorgan Chase Bank, National Represented By
Todd S Garan
Trustee(s):
Carolyn A Dye (TR) Represented By James A Dumas Jr Christian T Kim
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Hernandez Contreras Represented By Juanita V Miller
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MARTINGALE INVESTMENT, LLC
vs DEBTOR
Docket 70
Grant, and overrule the opposition (dkt.74), for the reasons set forth in the motion and reply papers (dkt.70, 78). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Movant(s):
Martingale Investments, LLC Represented By
Amelia B. Valenzuela
10:00 AM
Cont'd hrg re: Motion for relief from stay [RP] fr. 1/7/20, 3/3/20, 4/7/20
DEUTSCHE BANK TRUST COMPANY
vs DEBTOR
Docket 39
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed (see dkt.53 and order thereon), which terminates the automatic stay. See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, because dismissals sometimes are
10:00 AM
vacated this matter is not moot, and this Court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Janie B. Tatum Represented By Michael F Chekian
Movant(s):
Deutsche Bank Trust Company Represented By April Harriott Sean C Ferry Keith Labell Eric P Enciso
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 42
Tentative Ruling for 5/19/20:
Take off calendar in view of the parties' anticipated forbearance agreement (dkt.46), without prejudice to Movant self-calendaring a continued hearing on the motion by filing and serving a notice thereof on regular notice.
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Francisco Ramon Franco Represented By William G Cort
Movant(s):
U.S. Bank National Association, as Represented By
Merdaud Jafarnia Jennifer C Wong Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Tentative Ruling for 5/19/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to finalize the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to finalize the terms of an adequate protection agreement. There is not tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
Appearances required. This matter was continued to this date to allow time for the parties to review Debtor's payment history. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/4/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
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Trustee(s):
Josephine E Salmon
Kathy A Dockery (TR) Pro Se
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WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 60
Debtor(s):
Virginia B. Barruga Represented By Donald E Iwuchuku
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
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NATIONSTAR MORTGAGE, LLC
vs DEBTOR
Docket 45
Debtor(s):
Patricia Ann Oliver Represented By
Hale Andrew Antico
Movant(s):
Nationstar Mortgage LLC Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 42
Tentative Ruling for 5/19/20 (same as for 4/21/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order, and/or (c) whether they will agree to a forebearance agreement (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Rafael Macias Represented By Kevin T Simon
Joint Debtor(s):
Silvia Jauregui Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 147
Tentative Ruling for 5/19/20:
Continue to 6/16/20 at 10:00 a.m. to determine what further remedies may be appropriate, beyond what this Court previously ordered (dkt.174), based on whether or not Debtor has obtained refinancing, and any other facts and circumstances. Appearances are not required on 5/19/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/10/20:
Grant in part, by (A) authorizing Movant to proceed with issuing a notice of default ("NOD") and all other steps preliminary to a foreclosure sale, but (B) without relief to conduct the foreclosure sale itself at this time, and (C) deny "in rem" relief at this time and (D) continue the motion to 5/19/20 at 10:00
a.m. for further proceedings. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed: motion of Wilmington Savings Fund Society, FBS ("Movant") for relief from stay (dkt. 147, the "R/s Motion"); James Haycock's response (dkt. 157); Shiv Raj & Saroj Gupta's opposition (dkt. 158, the "Gupta Opposition"); Debtor's opposition (dkt. 159) and supporting papers (dkt. 160, 161, 162); Andrea Friedlander's joinder to Gupta Opposition (dkt. 163); Movant’s reply (dkt. 165) and evidentiary objections (dkt. 166)
Analysis
Overview
Debtor has not met at least one of the deadlines established by this Court's order continuing the automatic stay pursuant to 11 U.S.C. 362(c)(3) (dkt. 31, the "Stay Order"). The tentative ruling is that this is prima facie "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1).
Alternatively, the tentative ruling is that Movant has established a prima facie showing of a lack of adequate protection. That is also cause for relief.
11 U.S.C. 362(d)(1).
Altenatively, the tentative ruling is that Movant has established a prima facie showing that the subject property is not necessary to an effective reorganization (11 U.S.C. 362(d)(2)(B)). It is uncertain at this stage whether there is any equity in the subject property above all liens, and on that one issue Movant has the burden of proof, so the tentative ruling is not to rely on 11 U.S.C. 362(d)(2) in granting the relief set forth herein.
In addition, to the extent Debtor seeks reconsideration of the Stay Order, the tentative ruling is that she has not established sufficient legal or
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equitable grounds to do so.
Background
The Stay Order
This is Debtor's second bankruptcy case. The first case (Case No. 2:19-bk-16825-NB) was filed on 6/11/19 and dismissed on 7/3/19 because Debtor was ineligible to be a chapter 13 debtor.
Shortly thereafter, on 7/17/19, Debtor filed this case. She moved to continue the automatic stay pursuant to 11 U.S.C. 362(c)(3) (dkt. 11).
Movant's predecessor-in-interest, Patch of Land Lending, LLC ("Patch"), opposed that motion (dkt. 25).
After consideration of the filed documents and records of this Court, and oral arguments, this Court adopted its tentative ruling and entered an order granting the motion but, as a condition of continuation of the automatic stay, set a number of deadlines for Debtor to move this case forward and to ensure that the interests of Patch (among others) were not adversely affected - i.e., that they remained adequately protected (dkt. 31, the "Stay Order"). With respect to Patch's lien, this Court set deadlines as follows:
The tentative ruling is to grant [Debtor's] motion [to continue the automatic stay] in part and deny it in part by setting deadlines for Debtor to accomplish each of the items listed below. If Debtor fails timely to do so, objecting creditor Alliance Portfolio, Private Equity Finance, Inc. ("Alliance") (dkt. 21) and objecting creditor Patch of Land Lending, LLC ("Patch") (dkt. 25) would be authorized to file and serve motions for relief from the automatic stay on shortened time: a 14 day notice period, with any oppositions due 7 days prior to the hearing. The items that Debtor must accomplish are:
Bel Air refi/debt restructuring: by 9/24/19, file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at stopping the running [of] postpetition default interest owed to Patch (and any other creditors whose interests are secured by that property and who might be able to charge default interest under 11
U.S.C. 506(b)) and
interest payments to Patch: if any such treatment of Patch has not been accomplished by 11/12/19, pay Patch on that date
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all accrued postpetition interests, at the non-default interest rate, and thereafter maintain current in such payments . . . .
[Stay Order, dkt.31 (emphasis added)]
Debtor alleges that she has met the first deadline above by filing her motion to disallow Movant's default interest. For purposes of this tentative ruling, this Court expresses no view on that issue. But Debtor does not dispute that she has failed to meet the second deadline: she has not paid accrued and ongoing postpetition interest at the nondefault rate. See dkt. 147, Donatoni Decl., para. 13; dkt. 159, p. 9:28-10:2 (PDF pp. 12-13).
Other developments
Two other developments, described below, may provide context. But they do nothing to amend the second deadline in the Stay Order, quoted above. So this Court ultimately concludes that these two other developments are not presently relevant, although both might be relevant in future.
First, on 9/26/19 Debtor filed a motion to obtain postpetition financing (the "Financing Motion," dkt. 75). But for the reasons set forth in this Court's tentative ruling and on the record, this Court denied that motion. Although the Finance Motion might be evidence of Debtor's efforts to move this case forward, and perhaps Debtor will seek approval of new financing at a later time, these things are different from showing compliance with the Stay Order.
As an aside, this Court directed Debtor to lodge a proposed order, but it appears Debtor has not done so. Accordingly, Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing and attach a copy of the tentative ruling, thereby adopting it as this Court's final ruling (subject to any changes ordered at the hearing).
Second, on 11/12/19, Debtor filed a motion challenging the validity of Movant's assertion that it is entitled to default interest and late fees (dkt. 123, the "Default Interest Motion"), but the hearing on that motion has been continued several times (dkt. 129, 133, 141) and the current hearing is set for 5/5/20 at 1:00 p.m. (dkt. 164). Even if Debtor were to prevail on the Default Interest Motion, that might or might not establish that Debtor has any equity in the subject property - that issue is disputed. For present purposes, the point is only that this Court cannot presume that Debtor will prevail, and therefore any analysis of Movant's claim, or of the equity in the subject property, cannot
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presume that Movant's claim for default interest will be disallowed.
Grounds for relief under 11 U.S.C. 362(d)(1)&(2)
Debtor's failure to meet one or more deadlines in the Stay Order is, by itself, "cause" for at least some form of relief from the automatics stay
The tentative ruling is that Movant has established "cause" for relief (11 U.S.C. 362(d)(1)) simply by showing that Debtor has missed one (or more) of the deadlines in the Stay Order. That order conditionally found that Debtor had met her burden to overcome the presumption that she has not filed this case in good faith, but only on the condition that she "must" meet the deadlines in that order - i.e., she had to demonstrate her good faith by adequate prosecution of this case. Now Debtor has the burden to show, by clear and convincing evidence, that she can overcome the presumption of a lack of good faith under 11 U.S.C. 362(c)(3) even though she has not met one or more deadlines in the Stay Order. See Stay Order (dkt.31, Ex.1,
pp.3-5).
The tentative ruling is that Debtor has not met this burden on the present record. Debtor offers various excuses, but (as described below) they are unsupported by any substantial evidence or even a meaningful description of her prospects of making further progress and, meanwhile, protecting creditors' interests.
Therefore the tentative ruling is that it is appropriate to grant Movant the limited relief set forth at the start of this tentative ruling. That limited relief will permit Debtor some additional time to demonstrate (belatedly) her good faith.
"Adequate protection," and necessity of the subject property to an "effective" reorganization
Alternatively - even if this Court were persuaded not to revisit the "good faith" issue under 11 U.S.C. 362(c)(3), as set forth above - the reasoning underlying the Stay Order still applies. One reason that this Court imposed the deadlines in the Stay Order was that those deadlines were part of the protection of Movant's interest that was required for "adequate protection" (11
U.S.C. 362(d)(1)). The burden is on Debtor to establish that Movant is protected by an equity cushion that is large enough to provide adequate protection despite missing the deadline to commence adequate protection payments. To date, Debtor has not done so. See Stay Order (dkt.31, Ex.1,
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part "(3)", entitled "Adequate protection of [Movant's] interests [in the subject property").
Alternatively, the Stay Order set the deadlines therein as a method of measuring the progress that Debtor would need to show to establish that the subject property was necessary to an "effective" reorganization (11 U.S.C.
362(d)(2)(B)). See Stay Order (dkt.31, Ex.1, part "(2)(d)," entitled "Apparently sensible strategy [for attempting an effective reorganization]"). On this issue, too, Debtor has not followed through: at this later stage of the bankruptcy case (as described below), Debtor has not shown that she still could file a plan of reorganization that will have "a reasonable possibility of being confirmed within a reasonable time." United Sav. Assn. of Tex. v. Timbers of Inwood Forest Assoc’s, Ltd., 484 U.S. 365, 375-76 (1988) (citation omitted).
In reaching this tentative ruling, this Court interprets 11 U.S.C. 362(d)
(2) as requiring a stronger possibility of confirmation the longer the case is pending. But the tentative ruling is to reject any specific stages (such as deadlines keyed to the expiration of any exclusivity period) or any specific adjectives that attempt to capture all of the facts and circumstances that might be presented at each stage (such as progressing from a showing that a succcessful reorganization is "plausible" to being "probable" to being "assured"). Cf. dkt.147, pp.6:18-7:4 (citing In re Sun Valley Newspapers, 171
B.R. 71, 75 (9th Cir. BAP 1994)). This Court interprets Sun Valley as illustrating the type of analysis that bankruptcy courts typically apply in applying the "effective reorganization" standard of 11 U.S.C. 362(d)(2)(B), not as imposing any mandate that all bankruptcy courts must follow precisely such deadlines and adjectives. Alternatively, the tentative ruling is that this Court would reach the same result even if that were Sun Valley's holding (and even if this Bankruptcy Court were to hold that BAP decisions are binding, which has not been definitively established in the Ninth Circuit).
Debtor's burden under the foregoing standards
Debtor faces an uphill battle. As this Court explained in the Stay Order, Debtor faces "numerous hurdles to a successful chapter 11 restructuring of her finances" (id., Ex.1, p.2), and her evidence of an ability to do so was "woefully inadequate" to show that she could feasibly reorganize at the time of that order, but at that "very early stage of this bankruptcy case" this Court afforded Debtor considerable leeway. Id., Ex.1, p.3. Now, at this later stage, Debtor has substantially less leeway, and she offers many
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excuses but no significant evidence of progress. It is possible that negotiations or litigation with Debtor's insurer will lead to something, but there is no evidence that they will.
Debtor's counter-arguments appear to rely on two possibilities. One possibility would be a valuation of the subject property that is sufficiently great to provide so large an equity cushion that no periodic payments to Movant are required (perhaps in conjunction with disallowing Movant's default interest and late charges). Another possibility would be some breakthrough with Debtor's insurer that would fund further repairs to the property in time to obtain a refinancing or establish cash flow to make periodic payments.
Although Debtor states that "[t]here are a few lenders very interested in [] refinancing the Property now that there is some solid progress being made on the insurance claim" (dkt. 159, p.15:2-3), Debtor has not attached evidence supporting these assertions. The declaration of Craig Bordon of ClaimsXP (the proposed claims adjuster) provides no details about the status of his efforts to obtain more insurance proceeds (dkt. 159, pp.23-24).
Finally, Debtor makes it clear that she cannot sell the Bel Air Property to capitalize on any equity. According to Debtor, the anticipated capital gains taxes could be around $1 million, which would seriously if not entirely deplete any equity in the property (id., p. 17:1-4).
The tentative ruling is that Debtor has not met her burdens under any of the foregoing analysis, but she will continue to have the opportunity to attempt to show these things, if she can do so in time. Meanwhile it is appropriate to grant relief from the automatic stay as set forth at the start of this tentative ruling.
Valuation
The tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing, or possibly some other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers. The parties are directed to address their preferred methods of valuation, and associated deadlines and other procedures, at the hearing.
Treating Debtor's opposition as a request for reconsideration
Debtor's opposition could be construed as including a request for this Court to reconsider the deadlines in the Stay Order under Rule 9024 (Fed. R.
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Bankr. P.). But the tentative ruling is that Debtor must file a separate motion if she seeks such relief, and in any event she has not established sufficient legal or factual grounds for reconsideration.
Evidentiary objections
The tentative ruling is that Movant’s evidentiary objections are well taken (dkt. 166), except that any untimeliness is insufficient to warrant striking the proffered evidence. But even considering all of Debtor’s proffered evidence, the tentative ruling is that such evidence would not alter the outcome.
Mr. Haycock's request for relief if Movant is granted relief (dkt. 157)
The tentative ruling is to grant Mr. Haycock's request that, if Movant is granted relief, it should be on the condition that parallel relief be granted to Mr. Haycock.
Relief applicable notwithstanding any future bankruptcy cases ("in rem" relief)
The tentative ruling is that, although Debtor's failure to meet the deadlines in the Stay Order has reopened the question of Debtor's good faith, that is not quite enough to establish that the filing of the petition commencing this case was part of a "scheme" to delay, hinder, or defraud creditors (or any other grounds for in rem relief). Such relief requires a more showing of more eggregious acts, or failures to act, than what is required to show "cause" for relief in this current bankruptcy case.
Conclusion
This Court is empathetic to Debtor, and to other creditors whose interests might be prejudiced if Movant proceeds towards foreclosure. But in the nearly nine months that Debtor has been in bankruptcy (in her prior case and this one), she has failed to adequately use the tools available to her under the Bankruptcy Code to pay-off Movant's lien, restructure her finances, and/or establish that Movant is adequately protected, absent relief of the sort granted at the start of this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joshua L Scheer
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M & T BANK as Attorney in Fact for Lakeview Loan Servicing
vs DEBTOR
Docket 35
Debtor(s):
Laura Davila Represented By
Javier H Castillo
Movant(s):
M&T Bank as Attorney in Fact for Represented By
Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
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AJAX MORTGAGE LOAN TRUST 2018-G, MORTGAGE-BACKED SECURITIES, 2018-G
vs DEBTOR
Docket 30
Tentative Ruling for 5/19/20 (same as for 5/5/20 and 3/31/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/3/20:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 32).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred Ken Wing Li Represented By Ryan A. Stubbe
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:19-01192 Mesnick v. Witke et al
Docket 1
Debtor(s):
Bret Russell Witke Represented By
Michael H Raichelson
Defendant(s):
Bret Russell Witke Represented By
Michael H Raichelson
Bret Russell Witke Design Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Michael Mesnick Represented By Craig G Margulies
Noreen A Madoyan
Trustee(s):
Wesley H Avery (TR) Pro Se
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Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
fr. 7/30/19, 9/24/19, 12/10/19
Docket 1
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps
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Adv#: 2:19-01520 Catalina Sea Ranch, LLC v. Primary Ocean Producers Holdings, LLC
(3) To Recover Avoided Transfer; (4) For Declaratory Relief To Determine Validity, Priority Or Extent Of Lien And Other Interest In Property; (5) For Declaratory Relief To Determine Violation Of Automatic Stay; And (6) For Disallowance Of Claims [11 U.S.C. §§ 362, 502, 549, 550, and 551]
fr. 03/31/20
Docket 1
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Defendant(s):
Primary Ocean Producers Holdings, Pro Se
Plaintiff(s):
Catalina Sea Ranch, LLC Represented By Richard H Golubow
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1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20
Docket 43
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the
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MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
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Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
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Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20
Docket 1
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service re another summons (adv. dkt. 16)
In response to the Defendants' argument in their Motion to Dismiss
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(adv. dkt. 11) that Erica Martin was not served with the Trustee's Complaint (adv. dkt. 1), the Trustee stated that Erica Martin would be served with a new summons. Adv. dkt. 15, p.3:13-15. Another summons was issued on 2/4/20 (adv. dkt. 16) and at the hearing on 2/18/20 the Trustee represented that this summons had been served; but as of the drafting of this tentative ruling, no written proof of service has been filed on the docket. The Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The new summons provides that the parties were required to file a joint status report no later than 14 days before this status conference (3/24/20).
As of the drafting no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
Failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but
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need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
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1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20
Docket 332
Tentative Ruling for 5/19/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (dkt. 485).
Current issues
At the 5/12/20 hearing, this Court directed the parties to meet and confer regarding discovery, possible settlement, and any procedures that might be necessary or desirable in the event that any trial or evidentiary hearing has to proceed by video in view of the COVID-19 situation. The parties are directed to address the status of those efforts.
Dates/deadlines
After addressing the foregoing issues, the tentative ruling is to continue all matters on calendar for today to 7/14/20 at 11:00 a.m., with no status reports required.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
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Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20
Docket 1
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 2:00 p.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Preliminary issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons
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and complaint has been filed. Did the Trustee timely serve the summons and complaint? If so, Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The summons provides that the parties must file a joint status report no later than 14 days before the hearing (3/24/20). Adv. dkt. 2, p.2. As of the drafting of this tentative ruling, no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. If the summons and complaint have been served then failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v.
Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure
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to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Preliminary Issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint?
Status report
The summons (adv. dkt. 2) provides that a joint status report must be filed by the parties no later than 14 days prior to the status conference (2/18/20). As of the drafting of this tentative ruling, no status report has been filed.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Standard Issues
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to
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liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/24/20.
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David MacMillan Represented By
11:00 AM
Robert S Altagen Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
1:00 PM
Docket 72
Please see the tentative ruling for the status conference (Calendar no. 2, 5/19/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
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Docket 1
Tentative Ruling for 5/19/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
Holding's Application to Employ Leesh Tishman Fuscaldo & Lampl, Inc.'s ("Leesh Tishman") (dkt. 72, 75), UST's opposition (dkt. 81), Elegant's opposition (dkt. 89), Leesh Tishman's reply (dkt. 95)
Grant in part, deny in part, and continue in part, on the conditions and terms set forth below.
Statement of Disinterestedness
Pursuant to the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), proposed counsel is directed to file a separate statement of disinterestedness. (As set forth in those Procedures, please do not repeat what is in the employment application - see the Procedures for
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further guidance.)
Initial limited scope of employment
The tentative ruling is that employment cannot be authorized under subsection "(e)" of 11 U.S.C. 327, because that statutory provision applies by its terms only to a professional who "has represented" the debtor already (i.e., prepetition). But the tentative ruling is that employment may be limited in scope under subsection "(a)" of that section, and it is appropriate temporarily to authorize the firm's employment for its limited services on an emergency basis, without requiring it to commit to being "an involuntary DIP financier" of the Holdings case. Dkt.95, p.5:7. See In re Fondeller, 15 B.R. 890 (9th Cir.
BAP 1981).
Funding by third party
The tentative ruling is to require supplemental declaration(s) addressing the following issues to be filed and served by 5/26/20, with any supplemental response by Elegant or the United States Trustee due 5/29/20 at noon. The following are the standard requirements of Judge Bason when funding for a debtor's counsel has been or will be provided by a third party.
Any contribution from a non-debtor third party raises certain ethical issues because a third party who funds a retainer for a debtor (a "Funder") may have a variety of motivations for providing the funding such as, for example, being the recipient of an avoidable preference, or otherwise having interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a Funder is not outright prohibited, it is fraught with ethical concerns.
Therefore, supplemental declaration(s) are needed to address the following.
Connections. What are all of the connections between the Funder, on the one hand, and Debtor, Debtor's proposed counsel, and any of the other types of persons listed in FRBP 2014, on the other hand -- e.g., have there been any economic or business or personal connections between the Funder and Debtor, or between the Funder and proposed counsel, or any creditor or other party in interest, or their respective attorneys or accountants? These questions may be answered, if appropriate, by referring to specific disclosures already on file, e.g., the bankruptcy schedules.
Terms. The Application does not clearly address
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whether the retainer was intended to be a gift or a loan.
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney-client relationship and duty of loyalty is with Debtor, not the Funder? Who provided such advice: independent counsel, or Debtor's proposed counsel (and if the latter, was each Funder given the opportunity to obtain independent counsel)? Has the Funder given informed consent? Are these things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park- Helena Corp., 63 F.3d 877 (9th Cir. 1995).
The tentative ruling is that, based on the known possibility of avoidable transfers or other concerns (see 89), it might be necessary to require additional disclosures regarding the source of funds, and arrangements between Mr. Chan's affiliates. Debtor is directed to address that in the supplemental declaration(s).
Evergreen retainer
The tentative ruling is to authorize the procedure suggested by the United States Trustee in its opposition papers: holding funds in the firm's trust account. See dkt.81, p.7:15-18.
Authorization and commitment to serve as general bankruptcy counsel after initial limited scope of employment, subject to DIP Financing
The tentative ruling is to continue the employment application to be heard concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
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Continued status conference: 6/2/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden
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fr. 12/10/19, 1/14/20, 2/18/20, 03/31/20, 5/5/20
Docket 125
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 5/19/20 at 1:00 p.m.).
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the status conference (Calendar no. 10, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 3/10/20 at 1:00 p.m.).
Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as
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Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition (dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
The tentative ruling is to overrule Debtor's evidentiary objections (dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
Although valuation is relevant, the tentative ruling is that this Court cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other
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procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
Movant asserts that Debtor has shown bad faith, and that this is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor
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still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on 3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Michael Tremblay, Trustee Represented By
David I Brownstein
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Docket 49
Tentative Ruling for 5/19/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Compliance and reporting issues
The tentative ruling is to issue an order to show cause ("OSC") why this Court should not (i) remove Debtor as a debtor in possession (11 U.S.C. 1185(a)) and expand the Subchapter V Trustee's duties (11 U.S.C. 1183(b) (2)&(5)), or alternatively (ii) convert or dismiss this case (11 U.S.C. 1112).
The grounds for such OSC are set forth below, in the tentative rulings for this hearing and prior hearings.
Such grounds include evidence of gross mismanagement of the affairs of Debtor, incompetence, dishonesty, apparent failure to maintain appropriate insurance that poses a risk to the estate or to the public, apparently unauthorized use of cash collateral substantially harmful to one or more creditors, unexcused failure to satisfy timely the filing and reporting requirements established by the Bankruptcy Code and federal and local rules of this Court, failure to comply with the orders of this Court regarding disclosures and compliance with Debtor's obligations, failure timely to provide
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information reasonably requested by the United States Trustee, or other "cause" within the meaning of the cited statutory provisions. The tentative ruling is to set a hearing on the OSC concurrent with the continued status conference (see below), with a deadline of 5/20/20 for Debtor to serve the OSC on all parties in interest, and a deadline of 5/28/20 for Debtor and any other party in interest to file a response to the OSC.
After this hearing, this Court intends to issue a Memorialization of Tentative Rulings, as well as the OSC incorporating that memorialization by reference. The OSC will direct Debtor to serve those documents on all parties in interest.
Debtor's motion for authority to conduct business out of the ordinary course (dkt. 204), oppositions due at the hearing
The tentative ruling is to deny this motion in full - including Debtor's "merchandizing" business(es), her "brokerage" business(es), her real estate development busines(es), and any other businesses. But the tentative ruling is to do so without prejudice, and permit Debtor, for as long as she continues to be authorized to act as a debtor in possession, to file and serve future notices of proposed transactions under this motion, which she may self- calendar on 14 days' notice concurrent with any future status conference, with a deadline of 7 days prior to the hearing for any objection, and any reply permitted orally at the hearing. The grounds for this tentative ruling are as follows.
Statutory requirements
Debtor is prohibited from engaging in any use, sale, or lease of property of the bankruptcy estate "other than in the ordinary course of business." 11 U.S.C. 363(b)(1). Even as to "ordinary course" transactions, Debtor may not use cash or cash equivalents in which any entity has an interest ("cash collateral") (e.g., rents that are subject to an assignment of rents) without either authorization from this Court (after notice and a hearing) or such entity's consent (which is typically conditioned on things that require authorization from this Court, such as replacement liens).
What is "ordinary course" typically is measured in two ways. In broad terms, the "vertical" test looks to whether the transactions at issue are consistent with creditors' expectations based on Debtor's past transactions, and the "horizontal" test looks to what typically is done by other persons engaged in the same line of business as the subject debtor. See generally In
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re Dant & Russell, Inc., 853 F.2d 700 (9th Cir. 1988).
In this case, Debtor has not provided any evidence regarding the vertical test - i.e., that historically she engaged in a pattern of transactions similar to any of the businesses she now seeks to do. To the contrary, as set forth in prior tentative rulings (reproduced below) she has represented that her businesses were limited to the defunct "Hot Ginger" clothing business and ownership of some rental properties. Nor has Debtor provided any evidence regarding the horizontal test.
Therefore Debtor was and is required to seek authorization from this Court under 11 U.S.C. 363(b), after notice and a hearing, to engage in any of the businesses she describes in her motion. In addition, Debtor is cautioned that other limitations may apply to any proposed transaction. See, e.g., 11
U.S.C. 363(c) (cash collateral), 11 U.S.C. 364 (extensions of credit), and 28
U.S.C. 959(b) (compliance with nonbankruptcy laws).
With this background, this Court turns to the matters addressed in Debtor's motion for authority to use, sell, or lease property of the bankruptcy estate out of the ordinary course of business.
Three more previously undisclosed matters
This Court repeatedly has warned Debtor about the need for full and accurate disclosures (see the tentative rulings reproduced below, passim). But only in this latest motion has Debtor revealed that previously she has engaged in "three merchandizing transactions ...." Dkt.204, p.5:22. Why did Debtor fail to seek prior authorization for these transactions, and why did she fail to reveal them until now?
What is the third merchandizing transaction?
Debtor describes only two mechandizing transactions. See dkt.204, pp.5:20-6:9. What is the third transaction?
Where is Debtor's evidence?
Where is Debtor's declaration in support of the allegations in her papers regarding these three (or two) transactions? Where is the evidence supporting her allegations about her alleged gross profits, expenses, etc.?
In addition, where is Debtor's declaration affirming that at long last she has scoured her records and consulted again with her bankruptcy counsel and now fully understands her disclosure obligations and requirement for prior authorization under section 363(b) (and other legal requirements)? Where is her declaration that despite her previous failures to disclose her real estate development business, her PPE brokerage business, and the additional two
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or three transactions that she now reveals, she has now finally disclosed everything that she is required to disclose?
The first transaction (Lifethreads) is not sufficiently disclosed As to the first of these most recently disclosed transactions (with
Lifethreads LLC), Debtor's disclosures continue to be insufficient. She claims this transaction - the nature of which is not described - resulted in "a virtual zero net gain." Dkt.204, p.5:23 (emphasis added). What does this mean?
Is "virtual" zero a negative number? In other words, did Debtor lose money? How much?
Even if Debtor did not lose money, what was the risk that Debtor would lose money (in this unauthotized transaction)? More generally, what did Debtor buy and sell? Did she use cash collateral of one or more creditors to engage in this transaction? If she alleges that she did not, where did the funds for this transaction come from?
The second (C Health/Imperial) transaction is not sufficiently
disclosed
As to the second of these most recent transactions (with C Health Co.
LLC and Imperial Glove & Safety LLC) Debtor discloses that she paid "$50,000 for the merchandise in April and $30,000 in May plus [a $4,000?] commission for her broker counterpart" resulting in "a profit of over $6,000." Where is the evidence that this is an appropriate transaction from a cost/benefit standpoint?
In this C Health/Imperial transaction Debtor apparently spent approximately $84,000 to buy goods (PPE?). Again, where did this money come from, and is it cash collateral of one or more creditors?
What risks did the bankruptcy estate bear that Debtor might not have been able to resell the goods at a profit (as with the first transaction)? What other risks did the estate bear, such as the risk that the goods were defective? What steps did Debtor take to assure that the goods were not defective, or to obtain indemnities, or provide adequate disclaimers of warranties, or any other appropriate precautions?
What was Debtor's net profit (if any)? Debtor states that she made a modest gross profit of $6,000, after cost of goods and broker's commission. Again, there is no evidence of any of this. Nor is there any precise accounting. What is the net profit after deducting income taxes, insurance, and any any other costs and expenses that are properly allocable to this transaction?
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Debtor's PPE brokerage business
Debtor appears to argue that there is no real risk to the bankruptcy
estate in the brokerage transactions. First, once again, there is no evidence to support this assertion: all of Debtor's allegations are unsupported by any declaration or other evidence.
Second, Debtor conflates her lack of any written guarantees or warranties with a lack of risk of liability. They are not the same, as explained below.
Debtor asserts that she "makes no guaranty regarding any aspect of the PPE and requires the the purchaser inspect the PPE directly before the purchaser agrees to purchase it" and she makes "no warranties or commitments as they are not necessary under this business model."
Dkt.204, p.4:3-17. But the alleged lack of guarantees, warranties, and commitments is not the same as insulation from possible liability for breach of contract or tort. To use a hypothetical analogy solely for purposes of illustration, if Debtor recklessly brokered the sale of toxic snake oil by a charlatan to a hospital, Debtor might be liable for the resulting deaths.
Debtor admits that "the broker transactions involve securing PPE inventory following strict Food and Drug Administration (FDA) guidelines" (dkt.204, p.4:16-18, emphasis added) but, despite the sensitive nature of these transactions, they "occur fast" with "no formal brokering contracts involved" (id., p.4:25-27). Is Debtor asking creditors and this Court to believe that, when she brokers PPE "to hospitals, state agencies, and municipalities" (id., p.4:17-18), she never makes assurances that she has a qualified supplier who is ready, willing, and able to deliver the PPE, and there is never a risk that some of her oral communications will be misconstrued as providing some sort of promise that could be the basis for a breach of contract claim, or tort liability?
The point is not that any transaction must be risk-free. Rather, the point is that Debtor has not acknowledged and disclosed whatever risks are involved, and what cost/benefit analysis is involved, in her proposed transactions.
Conclusion as to proposed transactions
Debtor is gambling with creditors' money, and there is no evidence that Debtor herself knows the odds. In any event, she has not disclosed any assessment of the risks and any cost/benefit analysis. Moreover, given that the Hot Ginger business has been closed (for some time), the tentative ruling
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is that reopening that business would be a transaction out of the ordinary course. Therefore, Debtor has not met her burden to justify engaging in any transactions in future beyond her rental of the four properties she disclosed earlier in this case.
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.9, 5/12/20 at 1:00 p.m.)
Continue this matter to the same date as the continued status conference (see below).
Motion for postpetition DIP financing (dkt.198)
This motion is not on for hearing until 6/2/20. But, as part of this Status Conference, the tentative ruling is to direct Debtor no later than 5/20/20 to file Local Form 4001-2 (as required by the posted Procedures of Judge Bason, available at www.cacb.uscourts.gov). This Court recognizes that Debtor has included a list (dkt.198, pp.6-7) that might or might not be identical to the form; but parties in interest (and this Court should not have to do a line-by-line comparison).
In addition, the tentative ruling is to set the same deadline to file declaration(s) specifying exactly which liens Debtor proposes to prime (only Oxygen Funding's lien?) and an explanation of the source of funds for the estimated $63,664.02 "Due from Borrower" listed in the draft escrow statement (dkt.198, Ex.5, at PDF p.64). Is Debtor's husband going to pay this, out of his separate property?
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 6/2/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 5/25/20.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Compliance and reporting issues
Can creditors or this Court rely on anything Debtor says?
What is Debtor's business?
In the status report filed on 1/21/20 (the "Principal Status Report," dkt.65, p.2) Debtor asserted that her businesses were Hot Ginger, Inc. (although that apparently is not operating) and owning four rental properties. So it appeared that Debtor was a landlord.
There was no mention of any real estate development business. But Debtor's declaration of postpetition income at expenses (dkt.194, at PDF p.5), asserts that Debtor's business has been "turn-key" real estate development including prefabriacted section 8/veterans' housing. Debtor declares that the Covid-19 pandemic has shut down that business, but the pandemic did not shut down any businesses until after January, so why was that business not mentioned anywhere in the Principal Status Report?
And now Debtor reveals that she has started a new business as a
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broker of Personal Protective Equipment ("PPE"). She has not provided any notice to creditors of this new business, nor has she obtained authorization from this Court for starting transactions out of the ordinary course of business (11 U.S.C. 363(b)). See dkt.188, p.3, and dkt.191, last page. Does Debtor have any necessary or appropriate licenses or insurance? What are the risks, expenses, and potential benefits? What happens if Debtor brokers
$1m of PPE for a local hospital and then fails to deliver that PPE? Is there potential liability for the bankruptcy estate?
Debtor lists "self-employment" gross income of $5,000.00/mo. with no expenses (dkt.184 at PDF p.9). What is that "self-employment" business? Is it the PPE business? Or the real estate development business? Or some other (undisclosed) business?
What are the income and expenses of Debtor's non-rental business(es)?
Debtor reports no expenses associated with her "self-employment" business (whatever that is). Can that be so?
Perhaps the lack of any self-employment or income taxes can be explained based on Debtor's unsupported assumption that she will receive tax refunds of $193,000.00 (dkt.194 at PDF p.3). But are there really no other business expenses: no telephone, internet, computer, printer, supplies, office space, etc.?
Given Debtor's assertion that she made such huge miscalculations that she over-paid past years' taxes to the tune of $193,000.00, what confidence can creditors or this Court have that her projected revenues and (lack of) expenses are accurate? On tax issues specifically, how can anyone have confidence that Debtor is taking appropriate deductions and paying appropriate taxes for whatever businesses she currently operates?
In the rental business, what are Debtor's income and
expenses?
Debtor's declaration of postpetition income and expenses (dkt.194, at PDF pp.7-8) lists $3,000.00/mo. of rental income for each of the "626" and "622" properties. But she reports actual income from the "626" property of
$2,800.00/mo. (dkt.188 at PDF p.8), and $-0- for the "622" property (dkt.188 at PDF p.9).
As for expenses, Debtor lists $0 for maintenance, repairs, real estate
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taxes, insurance, utilities, any gardener, or anything else at the Jefferson Plaza property, other than the mortgages. See dkt.194, at PDF p.6. The same is true for the "626" and "622" properties, except for $37.50/mo. for maintenance. See dkt.194, at PDF pp.7-8. How is that remotely realistic?
It also appears that, even if there were no expenses other than the mortgages, some of the properties might operate at a net loss. For example, the "626" property (the one with $3,000.00/mo. of alleged income and
$2,800.00 of actual income) apparently has a monthly mortgage expense of
$5,625.00 (dkt.188 at PDF p.10). How does it make sense for the bankruptcy estate to retain properties that appear to be a drain on income?
Perhaps in recognition of the need for more revenue, Debtor reports that the Jefferson Plaza rents/revenue may increase (dkt.194, p.2). Is that realistic? This Court takes judicial notice of economic projections that, in the wake of the Covid-19 closures of many restaurants and other businesses, landlords might be facing a difficult time attracting and retaining enough tenants. Is it realistic for Debtor to plan to raise rents?
What else is going unreported, and is unauthorized?
Debtor lists $36,171.94 in receipts from "insurance" (dkt.188 at PDF p.9), with no explanation. Was there a fire or some other damage that was insured? Did that occur pre- or postpetition? Will the insurance cover all repair costs or only part?
Debtor reveals expenditures of $15,000.00 for construction (dkt.188, at PDF p.11). Is that construction within the ordinary course of Debtor's business (in which case why was that business not disclosed?) or was it out of the ordinary course (in which case why did Debtor fail to provide prior notice and seek authorization under section 363(b))?
Debtor has explained that some restaurant meals and other expenditures are being paid by her non-debtor husband. Both the expense and the husband's reimbursement should appear on the monthly operating reports, but if the reimbursements are disclosed they were not immediately apparent to this Court.
What else is going on that is not disclosed and/or not authorized?
Conclusion regarding compliance and reporting
All of the foregoing deficiencies are on top of months of incomplete, inconsistent, and erroneous financial reporting, and unauthorized
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expenditures and use of cash collateral, as set forth in prior tentative rulings (reproduced below). Debtor, the Subchapter V Trustee, and counsel for the United States Trustee are directed to address at the hearing what remedies this Court should impose.
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.9, 5/12/20 at 1:00 p.m.)
The parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 6/16/20 at 1:00 p.m. Brief written status report due 6/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
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Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Inadequate status report (dkt.169)
Debtor's status report simply repeats what is on the docket. It does not address any of the issues raised at prior status conferences and noted below. The tentative ruling is that no fees should be charged for preparation of the status report.
Partially adequate Disclosures
This Court has reviewed Debtor's supplemental disclosures about her non-debtor husband's finances and related matters (dkt. 145, 146, 147, 148, 158, 159, 167) in response to this Court's order issued on 3/4/20 (dkt. 133). The tentative ruling is that the disclosures are partially adequate.
On the one hand, Debtor has provided a copy of the premarital agreement (dkt.146, Ex.1), which is very important, and has also filed amended bankruptcy schedules I, J and D, as well as a statement of postpetition income and expenses, and Monthly Operating Reports ("MORs"). On the other hand, these disclosures are incomplete, unclear, and internally inconsistent.
Incompleteness
The incompleteness includes that, as Debtor acknowledges, she has yet to provide an amended Statement of Financial Affairs ("SOFA") because her family is dealing with the loss of a close family member (dkt.146, p.3, para.7 & 9). It is unclear what else might be missing: creditors and this Court cannot know what they and this Court do not know. The tentative ruling is to set a deadline of 4/21/20 to file the amended SOFA and any other documents that were required under this Court's prior order (dkt. 133).
Lack of clarity The MORs are unclear:
There are two business accounts (-8997 and -9003) but which account relates to which property/business?
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Why are there only two business accounts when
Debtor apparently shares in the income from the Jefferson Plaza business and has four properties (535 N Fuller, 636 N Laurel, 622 E 35th, and 626 E 35th) at least two of which are rental properties?
Why are there two personal checking accounts
(-9011 and -6492)?
Why is one account overdrawn (account -6492 shows
a balance of -$437, dkt.165, at PDF p.14)?
Debtor's January MOR vaguely lists many entries as "Household." From other information about some of these "Household" expenses, it is not clear that they are appropriate for a debtor in possesion: for example, $350 for "Your Hair By Ellie" on 1/31/20 (dkt.165, p.12, last entry) and $390.92 for "Sephora" on 1/21/20 (dkt.165, p.11, 3d line from bottom). True, Debtor alleges that there is equity in various properties, but that is far from certain and she might well be insolvent. In addition, the MOR lists a lot of restaurant meals (dkt.165, pp.11-12), and again, it is not clear that this is appropriate budgeting for a debtor in possession. The tentative ruling is to set a deadline of 4/21/20 for Debtor to file amended MORs that address these issues.
Debtor's alleged equity in her various properties is also far less clear than it should be. Although that information probably can be pieced together from various other documents, the tentative ruling is to set a deadline of 4/21/20 for Debtor to file a declaration with an attached spreadsheet showing, for each property or business, Debtor's estimate of value, the source of that estimate, the liens against each property (listed by lienholder, in order of seniority), the dollar amount of the claim secured by that lien (according to Debtor and, alternatively, according to the holder of the lien), and the sources of those data.
Internal inconsistency
One internal inconsistency is that the latest Bankruptcy Schedules I&J list $16,000 as Debtor's net income from rental properties/businesses (dkt.159, p.2, line 8a) but the attached statements for each property/business list $10,000 of net income (consisting of $10,000 from Jefferson Plaza, LLC,
$0 from 622 E 36th St, and $0 from 626 E. 36th St.). Dkt. 159, pp.5-7. What is the source of the other $6,000?
This Court has considered the possibility that Debtor has mixed up gross and net income. But that does not work either because the gross
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income is $22,700 ($16,700 + $3,000 + $3,000 = $22,700). Dkt. 159, pp.5-7.
The latest declaration of postpetition income and expenses (dkt.158) has yet more numbers that are different, but no explanation and no attached disclosures of gross income, expenses, and calculation of net income.
The tentative ruling is to set a deadline of 4/21/20 for Debtor to file (A) further amended Bankruptcy Schedules I and J and (B) a further amended statement of postpetition income and expenses, with a complete explanation of any differences between the former and the latter.
Conclusion as to Debtor's financial disclosure
How can creditors and this Court rely on Debtor to make accurate financial reporting of anything in this case if even basic information is missing, unclear, or incorrect? The tentative ruling is to give Debtor one more opportunity for complete, candid, and clear financial disclosures.
No discernable progress since last hearing
At a hearing on 3/10/20, this Court noted that the docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case, but took no action other than to caution Debtor to be cognizant of the warnings that this Court set forth on the record at the hearing on 3/3/10. The docket still does not reflect any activity. Why not?
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Debtor's motion for order declaring judgment liens void as violations of the automatic stay and for compensatory sanctions (dkt. 122, the "Sanctions Motion"); National Commercial Recovery, Inc.'s ("NCR") opposition (dkt. 142), debtor's reply (dkt. 157)
Deny.
The tentative ruling is that Debtor is correct that the automatic stay in her prior bankruptcy case applied when the abstracts were recorded, so the
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recording was void. But NCR is also correct:
that there is no evidence Debtor gave it notice of her bankruptcy filing, which would entitle it to seek to retroactively annul the stay (see In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir. 2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay)), and
that, although the better course may have been for NCR to file a motion seeking retroactive annulment, NCR was not taking any affirmative steps (it was not doing things held to violate the automatic stay, like terminating an executory contract - it was doing nothing, which preserved the status quo). That is less than what has been held, in an analogous situation involving preservation of the status quo, not to violate the automatic stay. See Citizens Bank of MD v. Stumpf, 116 S.Ct. 286 (1995). Therefore, the tentative ruling is that as a legal matter, NCR did not have any duty to record releases of its liens, and did not violate the automatic stay by declining to do so.
On the equities, to the extent equitable considerations are relevant, why should NCR have to pay to litigate these issues, instead of Debtor? If the lien were truly shown to be an obstacle to anything Debtor needs to accomplish, it is more equitable to place the burden on Debtor to seek affirmative relief than it would be to place the burden on NCR to seek confirmation from this Court that it has no duty to release its liens.
Moreover, the tentative ruling is that Debtor's premise is flawed.
Debtor asserts that "if NCR's lien were allowed to remain" that "would prevent refinancing" and "crater the case ...." (dkt. 157, p.2:25-26). How so?
Debtor has not established why she could not obtain financing that primes NCR's junior lien (if that lien is adequately protected) under 11 U.S.C.
364. Alternatively, Debtor has not explained why a chapter 11 plan could not leave NCR's lien in place and pay it over time. In fact, Debtor allegedly intends to pay all creditors (not just NCR) 100% of their claims over time, so it is not clear that Debtor has to do anything regarding NCR's lien at this point. Is this litigation a good use of the bankruptcy estate's assets?
Proposed orders: If appropriate, the prevailing party is directed to lodge a proposed order on each of the foregoing motions via LOU
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within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling,
subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: 4/15/20 (per dkt. 171, 172)
Continued status conference: 5/12/20 at 1:00 p.m.. Brief written status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 3/10/20:
Appearances required.
Current issues
Debtor's amendment of bankruptcy petition to elect Subchapter V (dkt. 128)
On 3/2/20, Debtor amended her petition to elect Subchapter V. The parties should be prepared to discuss the effect of that amendment, including any appropriate dates and deadlines for such matters as the appointment of a Subchapter V trustee, the filing of an amended plan, and any other applicable procedures that this Court may need to set at this time.
No discernable progress since last hearing
The docket does not reflect any motion to sell or refiance any property, or other evidence of adequate prosecution of this case. Given the short time since the last hearing, the tentative ruling is that this Court will not take any action based on that lack of discernable progress, but to remind Debtor to be cognizant of the warnings that this Court set forth on the record at the last hearing.
No corrected MOR
Debtor has not corrected the monthly operating report, which was not filed on the required form. See tentative ruling for 3/3/20 (reproduced below), item "(1)" "(b)". Why not?
No statement reflecting apparent increase in income?
Despite two reminders, Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Rulings for
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3/10/20 and 2/18/20 (reproduced below). Why not?
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94), Debtor's reply (dkt. 134), interim order (dkt.113)
Although this Court has concerns about whether Debtor's financial disclosures are accurate and complete (as set forth in various portions of this tentative ruling and prior tentative rulings), the proposed use of funds in the budget motion appears to be appopriate. Accordingly, the tentative ruling is to grant the motion on a final basis, subject to the following.
First, any approval is subject possible reconsideration once Debtor finally files her statement of postpetition income and expenses, and files the other documents directed by this Court (see dkt.133), or as other facts may come to light. Second, the budget must be adjusted to accommodate the request of East West Bank for Debtor to increase her proposed monthly mortgage payment to $5,643.86, which Debtor has agreed to do (dkt. 134). Third, any approval is subject to the parties' rights to seek further relief, including approval of any stipulation for adequate protection.
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on a final basis, on the same terms as stated in the order (dkt.114) granting the motion on an interim basis, and subject to the same caveats and conditions as set forth above regarding the budget motion.
Application to employ The Orantes Law Firm (the "Firm") (dkt. 72); statement of disinterestedness (dkt. 73); amended statement of disinterestedness (dkt. 82); Dec re non-opp (dkt. 98); order setting matter for hearing (dkt. 101)
The tentative ruling is to grant the application in part and deny it in part as follows.
Debtor seeks to employ the Firm pursuant to 11 U.S.C. 327, with compensation pursuant to 11 U.S.C. 330 at the following hourly rates for the Firm's attorneys: Giovanni Orantes: $695 and Luis A. Solorzano: $350 (dkt. 72, p.16). In determining the reasonableness of the proposed billing rates, 11 USC 330(a)(3)(B), (E) and (F) require this Court to consider, among other things, proposed counsel's hourly rates, any board certification or other demonstrated skill and experience in the bankruptcy field, and "the customary compensation charged by comparably skilled practitioners "
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Based on a review of rates charged by other bankruptcy professionals practicing before this Court as well as this Court's familiarity with proposed counsel's skills and performance in pending and past cases before it, the tentative ruling is to approve the Firm's employment, subject to Judge Bason's standard employment terms (available at www.cacb.uscourts.gov), but reduce the hourly rates that the Firm may charge to the following maximum dollar amounts, without in any way limiting the requirement that any rates charged and time spent still must be fully justified: Giovanni Orantes:
$475/hour and Luis A. Solorzano: $250/hour.
In addition, the tentative ruling is that any waiver of conflicts of interest is ineffective as against the bankruptcy estate. (A "debtor in possession," acting as a trustee for the benefit of creditors, cannot waive conflicts on behalf of those creditors.)
Motion for relief from stay (as amended, dkt. 93), debtor supplemental declaration (dkt.129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no.13, 3/10/20 at 1:00 p.m.)
The tentative ruling is to continue this matter again, to be concurrent with the continued status conference (see below), so as to be able to assess
whether Debtor has adequately prosecuted this case, including selling or refinancing one or more properties (if that is realistic) or otherwise demonstrating progress that has been sorely lacking to date, and (ii) Debtor's papers regarding her non-debtor husband's finances, which are due 3/18/20. See Order (dkt.133).
Meanwhile, the parties should be prepared to address whether they have agreed upon procedures for valuing the property and whether further briefing is necessary regarding any issues of debtor's alleged bad faith. See dkt.132, 138.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
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Bar date: 5/1/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/31/20 at 1:00 p.m., concurrent with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Motion for relief from stay (as amended, dkt. 93)
Grant, as set forth in the tentative ruling for calendar no. 15 (3/3/20 at 1:00 p.m.).
Monthly operating report ("MOR") #1 (for Jan, 2020, dkt.103) Debtor's MOR is not on the form that is familiar to this Court. Has the
Office of the United States Trustee changed its form? Debtor reports $0 income for the month of January. Were rents paid prior to conversion to chapter 11 (i.e., prior to 1/2/20), and if so, how much rental income did Debtor receive for January, and when?
Income and expenses
Debtor still has not filed a declaration of current/postpetition income and expenses. See Revised Tentative Ruling for 2/18/20 (reproduced below). Why not?
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Debtor's Bankruptcy Schedules I and J provide very little information
about Debtor's rental income. They list only gross rents per building instead of, e.g., a rent roll listing each tenant and their rental rate and information about whether those rents are reliable, such as a rental history. Nor does Debtor provide any breakdown of expenses, beyond what appears to be Debtor's rough estimate of $6,000 per month in mortgage payments, which appears to omit any payments to liens that Debtor is disputing. Nothing appears to be allocated for rental property maintenance, repairs, utilities, gardening, etc.
In addition, creditor Tremblay has questioned whether Debtor is omitting community property income of her non-debtor spouse, Mr. Behzad Beroukhai. See dkt.119, p.2:17-28. As Tremblay notes, Mr. Beroukhai allegedly pays all expenses related to certain real property, but Debtor has not disclosed and accounted for such past and ongoing funds. This Court also notes that Mr. Beroukhai is not listed as a codebtor on any debts. See Bankruptcy Schedule H (dkt.10 at PDF p.30, line 1). What is the true situation, and are Debtor's disclosures accurate?
The tentative ruling is to set a deadline of 3/6/20 for Debtor to file and serve amended Schedules I and J, an amended SOFA, and any other documents that may be necessary or appropriate to provide much more comprehensive information about her income, expenses, assets, liabilities, and other aspects of her finances.
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required by counsel for the debtor but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Budget Motion (dkt. 85, 90), East West Bank's opposition (dkt. 94)
The tentative ruling is to grant in part and deny in part the budget motion, on an interim basis, such that Debtor is authorized to make the expenditures in her proposed budget but must provide additional adequate protection payments to East West Bank to bring the total payment from
$4,619.32 to $5,140.78, without prejudice to Debtor and East West Bank establishing an evidentiary basis for a lesser or greater dollar amount either
(i) for adequate protection payments, (ii) for purposes of any chapter 11 plan, or (iii) for any other reason. The tentative ruling is to set a deadline of 2/25/20 for East West Bank to file a declaration with a copy of advance notice to Debtor regarding the increased monthly mortgage payments, a deadline of 3/4/20 for any response by Debtor, and any reply by East West Bank permitted at the continued hearing, to be held contemporaneous with the continued status conference (see below).
Debtor states (dkt.85, Ex.1, at PDF p.7, 1st footnote) that she recently had an increase income. But, as of the preparation of this tentative ruling, Debtor has not filed a declaration of current/postpetition income and expenses. Why not?
Cash Collateral Motion (dkt. 86, 90)
Grant the motion on an interim basis, subject to Judge Bason's standard conditions for use of cash collateral set forth in the tentative ruling for calendar no. 17.20 (2/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the
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hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 3/10/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Lack of progress
Debtor has only very belatedly filed a status report (dkt.65) (one week after it was required by this Court's order, dkt. 50). Worse, long after this case was converted to chapter 11 (11/20/19) she has only now filed an application to employ counsel and a budget motion, and she admits (dkt. 65, p.2) that she has not filed her list of 20 largest unsecured creditors. In
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addition, she admits that she has not filed any cash collateral motion(s) (id., p.3), which apparently means that either she has been using cash without authority or she has been failing to use cash for ordinary and necessary expenses, both of which are bad.
What remedies should this Court impose on Debtor and/or her counsel for this pervasive failure to comply with her obligations under the Bankruptcy Code? What assurances can they provide this Court that similar problems will not happen in future?
Deadlines/dates. This case was filed on 11/20/19 and converted from chapter 13 on 1/2/20.
Bar date: 4/3/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: n/a
Continued status conference: 2/18/20 at 1:00 p.m., concurrent with other matters in this case. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
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Docket 204
Please see the tentative ruling for the status conference (Calendar no. 5, 5/19/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20
BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
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Docket 962
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
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fr. 3/10/20
Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
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fr. 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20,
4/7/20, 5/5/20
BEVERLY PARTNERS, LLC
vs DEBTOR
Docket 47
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (calendar no. 9, 5/19/20 at 2:00 p.m.)
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Revised Tentative Ruling for 2/18/20:
Grant in part the motion of Beverly Partners, LLC ("Beverly") for relief from automatic stay (dkt. 47). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within
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7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
Based on the motion papers, Debtor's opposition papers (dkt. 50), and Beverly's reply (dkt. 53), the tentative ruling is to modify the automatic stay to set deadlines - further described below - for Debtor to take steps to market and sell the property at 10838-10842 Beverly Blvd., Whittier, CA 90601 (the "Property"). This Court recognizes that Debtor has characterized the Property as his retirement security, but the tentative ruling is that there is no other way to provide adequate protection of Beverly's interest in the Property.
(1) Valuation
The tentative ruling is that Beverly's evidence is persuasive as to including a higher property tax assessment for valuation purposes (see Eggleston Reply
Decl., dkt.53, p.3:1-13) and that, with this adjustment, Debtor's approach to valuation would yield a value of $850,000 (id., p.3:14-17). Beverly's appraisal, in contrast, asserts a value of $795,000. See dkt.47, at PDF pp.77-end, and dkt. 53, p.3:18-21.
The tentative ruling is that the other evidence provided by Debtor and Beverly (e.g., as to appropriate discount rates, and the use of allegedly comparable properties) does not weigh in one direction or the other clearly enough for this Court to decide between the two valuations without an evidentiary hearing (or, perhaps, further declarations). Compare Eggleston Decl. (dkt.79, pp.79 et seq.) and Eggleston Reply Decl. (dkt.53) with Collins Appraisal (dkt.50, Ex.A) and Collins Decl. (dkt.50, pp.13 et seq.). Therefore, the remainder of this tentative ruling considers both valuations.
(2) 11 U.S.C. 362(d)(1)
Under section 362(d)(1) this Court must consider any lack of adequate protection (or other "cause" for relief). One form of adequate protection is a sufficient equity cushion.
The tentative ruling is that, unless an equity cushion is very large, an eroding equity cushion may place Bevery's interest in the Property at greater risk. Therefore, this Court must consider Beverly's equity cushion (if any),
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both as of the petition date (8/30/19) and currently.
In calculating that equity cushion the tentative ruling is that this Court must consider (i) the senior real estate tax lien (Claim No.2-3) of $22,417.08 as of the petition date, plus postpetition interest at 18% for the current calculation (id., p.2, line 9), plus (ii) Beverly's lien of approximately
$721,702.10 as of the petition date, or approximately $741,879.34 as of 11/7/19 (dkt.47, pp.7 & 11), plus postpetition interest at 17% for the current calculation (id., Ex.H, at PDF p.141) (POC 5-1, line 9), plus (iii) any other charges that are allowable under 11 U.S.C. 506(b) (e.g., ongoing attorney fees), minus (iv) adequate protection payments (3 x $3,313.63 through Beverly's 12/3/19 Reply, dkt.dkt.53, p.2:15, plus two more payments for January and February, for a total of 5x$3,313.63 = $16,586.15).
Based on these numbers, the tentative ruling is that, even using Debtor's valuation method (adjusted as set forth above), the combination of a modest equity cushion (substantially below 20%) and the current (low) adequate protection payments (very substantially below the contractual default or non-default interest rates) are insufficient. They do not provide Beverly with protection of its interest that is truly "adequate" as required by section 362(d)(1).
Therefore this Court "shall" grant some form of relief from the automatic stay. 11 U.S.C. 362(d). That relief need not necessarily be termination of the automatic stay: it can take the form of modifying or conditioning the automatic stay. Id. The tentative ruling is that, because Beverly itself would have to take time to market and sell the Property (if it were to attempt to maximize value and not risk its own recovery), Beverly will be adequately protected by providing Debtor with time in which to do the same.
Amount of time to market and sell the property
The tentative ruling is to set deadlines of (a) 2/28/20 for Debtor to file and serve an application to employ a real estate agent for the Property, (b) 4/24/20 for Debtor to file and serve a motion under 11 U.S.C. 363(b) and (f) to sell the Property, subject to overbids, (c) 5/19/20 for a hearing (and auction, if there are any overbidders), and (d) 6/23/20 to close the sale (either to the winning bidder or a backup bidder) and pay Beverly out of escrow. If Debtor fails to meet those deadlines, the tentative ruling is that Beverly would be authorized to file and serve a declaration of default and lodge a proposed
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order terminating the automatic stay.
Meanwhile, the tentative ruling is to monitor Debtor's progress by setting a continued hearing on this motion to the same time as the continued status conference (see calendar no. 23, 2/18/20 at 1:00 p.m.).
(4) 11 U.S.C. 362(d)(2)
The tentative ruling is that for purposes of section 362(d)(2)(A) (whether Debtor has any equity in the Property) this Court must take into account the IRS lien (Claim No.7-1) of $64,423.96 as of the petition date (id. at PDF pp.2&4-10), plus postpetition interest of 5% for the current calculation. This Court notes that the IRS claim is secured by any property owned by Debtor, but there is no evidence that equity in any other property will decrease the amount of this claim.
The result would be that under Beverly's valuation Debtor would have no equity in the property, but under Debtor's valuation he would have some equity. Because the burden of proof is on Beverly on this issue (11 U.S.C. 362(g)(1)), the tentative ruling is that on the present record Beverly has not established an entitlement to relief under section 362(d)(2). All rights are reserved for Beverly to continue seeking to establish that element with additional evidence, and for Debtor to oppose any such evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
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Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Beverly Partners, LLC Represented By Simon Aron
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fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20
Docket 19
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (calendar no. 9, 5/19/20 at 2:00 p.m.)
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25, 1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30,
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12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in
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the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition
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liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
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Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
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for relief from the automatic stay to enlarge the time to file a motion under 363(B) and (F)
fr. 5/5/20
Docket 124
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (calendar no. 9, 5/19/20 at 2:00 p.m.)
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
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fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20
Docket 1
Tentative Ruling for 5/19/20 (same as for 5/5/20 except for continued hearing date):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt. 94, 105); Debtor's ex parte application to modifying order re relief from stay (dkt. 126, the "Ex Parte Motion"), Beverly's opposition (dkt.129)
Deny Debtor's ex parte application, for the reasons set forth in the opposition, and because this appears to be a self-created emergency.
Debtor was required to file and serve a motion to sell the property no later than 4/24/20. Dkt. 94, PDF p. 7. Debtor waited until three days before that deadline to file the Ex Parte Motion, on 4/21/20. See dkt. 124.
The parties should be prepared to address whether they will agree to any modified order granting adequate protection or other relief.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86, 101, 113)
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The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 113), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
(c) Deadline for filing a plan 11 U.S.C. 1189(b) provides
The debtor shall file a plan not later than 90 days after the order for relief under this chapter, except that the court may extend the period if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable.
As the order for relief in this case was entered on 8/30/19, Debtor's plan would have needed to be filed by 11/28/19. However, Debtor cannot "justly" be held accountable for his failure to file a plan by that date, as the above referenced code section did not become effective until 2/19/20.
The parties are directed to address what deadline this Court should set for Debtor to file a plan. The tentative ruling is to set a deadline of 7/15/20, subject to adjustment depending on developments with the current pandemic situation.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/30/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt. 94, 105); Debtor's ex parte application to modifying order re relief from stay (dkt. 126, the "Ex Parte Motion"), Beverly's opposition (dkt.129)
Deny Debtor's ex parte application, for the reasons set forth in the opposition, and because this appears to be a self-created emergency.
Debtor was required to file and serve a motion to sell the property no later than 4/24/20. Dkt. 94, PDF p. 7. Debtor waited until three days before that deadline to file the Ex Parte Motion, on 4/21/20. See dkt. 124.
The parties should be prepared to address whether they will agree to any modified order granting adequate protection or other relief.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86, 101, 113)
The tentative ruling is to grant on a further interim basis, on the same terms as this Court's prior interim order (dkt. 113), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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(c) Deadline for filing a plan 11 U.S.C. 1189(b) provides
The debtor shall file a plan not later than 90 days after the order for relief under this chapter, except that the court may extend the period if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable.
As the order for relief in this case was entered on 8/30/19, Debtor's plan would have needed to be filed by 11/28/19. However, Debtor cannot "justly" be held accountable for his failure to file a plan by that date, as the above referenced code section did not become effective until 2/19/20.
The parties are directed to address what deadline this Court should set for Debtor to file a plan. The tentative ruling is to set a deadline of 7/15/20, subject to adjustment depending on developments with the current pandemic situation.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/2/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/7/20:
Continue as set forth below. Appearances are not required on 4/7/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53); Orders (dkt.94, 105)
Continue to the same date and time as the continued status conference, to see if Debtor timely files and serves a timely 11 U.S.C. Section 363(b) motion, as required by this Court's adopted tentative ruling from the 2/18/20 hearing. See dkt. 94, PDF p.7.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 101), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/5/20 at 2:00 p.m. No written status
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report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Appearances required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference, because Debtor has timely filed a motion to employ a real estate broker (see dkt. 97, 98).
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
The tentative ruling is to grant on a further interim basis, on the same
terms as this Court's prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 4/7/20 at 1:00 p.m. No written status
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report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 2/18/20:
Appearances required.
Current issues
Order To Show Cause Re Service Of Bar Date Order (the "OSC," dkt. 63)
Discharge the OSC based on Debtor's fourth amended proof of service (dkt.89) and supporting declaration (dkt.90).
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Grant in part, as set forth in the tentative ruling for calendar no. 20 (2/18/20 at 1:00 p.m.), with a continued hearing contemporaneous with the continued status conference (see below).
(c) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86)
Grant on a further interim basis, on the same terms as this Court's
prior interim order (dkt. 86), with a continued hearing contemporaneous with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms
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required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 1/28/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 12/17/19:
Appearances are not required.
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Continue to the same date and time as the continued status conference. Reasons: This Court's posted tentative ruling prior to the hearing scheduled for 12/10/19 (reproduced below) was not contested, and therefore it was adopted as this Court's ruling. The ruling was: "to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to [i] serve all required persons with notice of the continued hearing, and [ii] file a proof of service." (Emphasis added.) Beverly has done the latter (dkt.54) but not the former.
(b) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61)
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Grant on a final basis.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28, which might or might not have been served properly, see Order, dkt.63)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/28/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required. on 12/10/19, but Debtor and Beverly Partners, LLC ("Beverly") are directed, well ahead of the continued hearing date set forth below, to take whatever steps are necessary or appropriate to address the issues set forth below (e.g., correcting service and/or proofs of service, lodging proposed order(s), filing corrected MORs, etc.).
Current issues
Beverly's motion for relief from automatic stay (dkt. 47); Debtor's opposition (dkt. 50); Beverly's reply (dkt. 53)
Beverly's proof of service does not show service on the list of creditors included in Debtor's "list filed under Rule 1007(d)" (as required by Rule 4001(a)(1), Fed. R. Bankr. P.). See dkt. 1. The tentative ruling is to continue this hearing to 12/17/19 at 1:00 p.m., with a deadline of 12/11/19 for Beverly to serve all required persons with notice of the continued hearing, and file a
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proof of service.
Cash collateral motion (dkt.19)
No proposed order has been lodged - at the hearing on 10/1/19 this Court directed counsel to lodge a proposed order granting the motion on an interim basis and attaching (and adopting) a copy of this Court's tentative ruling for that date (available at www.cacb.uscourts.gov). In addition, Debtor did not file and serve a notice of the final hearing by 10/3/19. In addition, any such service would have to be in compliance with the applicable rules for service, as stated in that adopted tentative ruling.
The current tentative ruling is (i) to direct counsel, again, to lodge a proposed order granting the motion on an interim basis through the conclusion of the final hearing, (ii) to set a final hearing for the same date and time as the continued status conference (see below), and (iii) to set a deadline of 12/11/19 for Debtor to file and serve notice of the final hearing in compliance with the applicable rules for service.
Proof of service of bar date order (dkt.28)
Debtor's counsel has had trouble with service of this order and/or proving that it was served as required. See dkt. 35,36,37. Even the latest, second amended proof of service (dkt.37) is inadequate in that it fails to state who actually served the order and when they did so. Implicitly, the person who signed the proof of service, Paulina Buitron, is the person who actually deposited the envelopes in the U.S. mail, and that was done sometime between 9/30/19, when the order was supposed to have been served, and 10/3/19, when the proof of service was filed, but the declaration does not actually say so. In addition, at the hearing on 10/1/19 this Court directed Debtor's counsel to double-check that all creditors had in fact been served and, if not, to apply for an order setting a supplemental bar date as to any creditors who have not been served.
The tentative ruling is to excuse what appears to be untimely service of the bar date order by a few days, and set a deadline of 12/11/19 (i) for Debtor's counsel to file a third amended proof of service of the bar date order, using the local form (mandatory for all motions) (see Local Form
F9013-3.1.PROOF.SERVICE), (ii) to lodge a proposed order excusing the untimely service of the bar date order, with a copy of this tentative ruling attached, and (iii) if necessary, apply for a supplemental bar date for any creditors who were not served with the bar date order, and lodge a proposed supplemental bar date order.
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Debtor's Monthly Operating Reports ("MORs")
Debtor appears to be having trouble complying with his obligations as a debtor in possession, including not paying prepetition debts. In addition, the October MOR (dkt.49) appears to show lossess from most of Debtor's various businesses, and perilously low bank balances, even with the reduced dollar amount of the adequate protection payments to Beverly (less than the ongoing interest obligation). In addition, there is an internal inconsistency about postpetition adequate protection and/or lease payments: the October MOR (dkt.49, at PDF p.57 of 61) lists "0" postpetition payments not made (i.e., Debtor allegedly is postpetition current), but then the same table lists "Total Due" postpetition amounts of many thousands of dollars - which is it? Is Debtor postpetition current in payments to secured creditors and/or lessors, or not?
The tentative ruling is to direct Debtor (i) to confer with the Office of the United States Trustee and file whatever corrected MORs are necessary or appropriate, and (ii) to be prepared to address the foregoing issues at the continued status conference.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28; see above)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/17/19 at 1:00 p.m. (short continuance because Beverly's motion for relief from the automatic stay should be addressed soon). No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
[N/A: continued to 12/10/19 (dkt.43)]
Tentative Ruling for 10/1/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Cash collateral motion
Grant (subject to this Court's standard conditions, see calendar no.1, 10/1/19 at 1:00 p.m.), provided that Debtor must address why this motion was not self-calendared for hearing until over a month after the petition date, and whether, meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (see Order, dkt.28).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/29/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required by counsel for Debtor(s) and by Debtor himself.
Current issues
Budget Motion
Debtor's status report incorrectly states that a budget motion is not required by the presiding judge's procedures. Dkt. 20, p.3. See posted Procedures of Judge Bason (available at cacb.uscourts.gov) (the "Bason Procedures") Section VII.G. In addition, a budget motion appears to be particularly important in this case because most of Debtor's income and expenses are effectively hidden and/or mis-reported.
Debtor's Bankruptcy Schedule I reports that he is an interior designer/hair stylist (dkt.22, at PDF p.27), his Statement Of Financial Affairs ("SOFA") lists various "dba" enterprises that might or might not reflect other business ventures, and Debtor apparently rents out some of his properties using Airbnb, but there is no breakdown of any of this. Contrary to the instructions on line 8a of Schedule I, debtor lists only a total net dollar amount for all businesses/properties combined - $22,598.00 per month - and fails to attach a statement for each business/property showing gross receipts, ordinary and necessary business expenses, and the calculation of net income. Also, in apparent contradiction of this alleged monthly net income, the SOFA (dkt. 22 at PDF p.31) lists gross income of $20,000 for the year to date (9 months), $7,875 for 2018, and $28,223 for 2017. (Perhaps Debtor listed monthly net income instead of yearly gross income - if so he must file a corrected SOFA.)
The tentative ruling is to direct Debtor to file an amended Schedule I and an amended SOFA, and to file and serve a budget motion and any other documents that are necessary or appropriate to correct the foregoing deficiencies, no later than 9/27/19.
Bankruptcy Schedule G
Debtor lists no executory contracts or unexpired leases (dkt.22, at PDF p.24). What about Airbnb and/or other short-term or long-term rental
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arrangements? The tentative ruling is to direct Debtor to file an amended Schedule G no later than 9/27/19.
Cash collateral
Even though this case was filed on 8/30/19, Debtor did not self- calendar his cash collateral motion for hearing until over a month later, on 10/1/19 at 1:00 p.m. Meanwhile, has Debtor (i) been using cash collateral without authorization (in violation of 11 U.S.C. 363(c)) or (ii) not been using cash collateral, and hence failing to pay ordinary and necessary business and personal expenses, in violation of Debtor's duties to pay postpetition debts as they come due and preserve and maximize the value of the bankruptcy estate. 11 U.S.C. 1107(a) and 1108, and 28 U.S.C. 959(b). The tentative ruling is that, although this is not yet sufficient cause for appointment of a chapter 11 trustee or other remedies, it may factor into consideration of any such remedies in future.
Employment Application
The tentative ruling is to set a deadline of 9/27/19 for Debtor to file and serve local form F 2014-1.STMT.DISINTERESTED.PROF in support of Debtor's application to employ Eric Bensamochan as his bankruptcy counsel (dkt. 18). See Bason Procedures Section VII.D.
Deadlines/dates. This case was filed on 8/30/19.
Bar date: 12/13/19 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/1/19 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
9:00 AM
Adv#: 2:18-01158 Duff v. Quinn
Docket 1
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Pro Se
Plaintiff(s):
James T Duff Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
9:00 AM
Docket 1
Debtor(s):
Samini Cohen Spanos LLP Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Represented By Daniel A Lev
8:30 AM
Docket 27
- NONE LISTED -
Debtor(s):
David Edward Falcon Represented By Dana M Douglas
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 50
Grant. Debtor is directed to (a) file mandatory local form F
3015-1.8.DISCHARGE.APPLICATION and (b) lodge a proposed order giving creditors notice of the 30-day deadline to file a complaint under 11 U.S.C.
523(a)(6) pursuant to Rule 4007(d) (Fed. R. Bankr. P.) by no later than 6/4/20.
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Debtor is directed to lodge a proposed order granting the motion via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Neville Torrez Represented By Michael E Clark
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Claimant PHH Mortgage/ Bank of New York Mellon
Docket 24
- NONE LISTED -
Debtor(s):
Cynthia A Dunning Represented By Marjorie M Johnson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/30/20
Docket 33
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
There is no tentative ruling but the parties should be prepared to address the following issues.
Settlement negotiations
In the stipulation continuing the initial hearing on Debtor's motion, the parties stated that they were exploring resolving the motion without the need for a hearing. Dkt. 37, p.2:10-14. The parties should be prepared to address the status of those efforts.
Value of the property
Debtor's motion relies on an appraisal as of 3/3/20 valuing the subject property at $390,000.00. See dkt. 33, p.3 & Ex. C. In its opposition, Real Time Resolutions, Inc.'s (as agent for the Bank of New York Mellon) ("Resolutions") argues that the motion should be denied because (i) Debtor's valuation of the property was not as of the petition date, (ii) the appraiser relied on a contractor's invoice from an unnamed contractor in reducing the value of his appraisal, and (iii) based on Resolutions' own appraisal the property is worth $455,000.00 as of the petition date. Dkt. 35, pp.2:26-3:24;
8:30 AM
dkt. 36. Debtor's reply (dkt. 42) argues that Resolutions' appraisal underestimates the cost of repairs needed on property ($20,000 v.
$131,925.00), and includes a declaration from a general contract to support Debtor's repair estimates (dkt. 43).
The tentative ruling is that Resolutions' first argument is not persuasive, at least without evidence that the difference in dates makes an actual difference in valuation. Judge Bason typically accepts valuations dated within 6 months before or after the petition date. Because the petition date is 12/7/19 and Debtor's appraisal is dated as of 3/3/20, the tentative ruling is that Debtor's appraisal is sufficiently close to the petition date.
As to the parties' other arguments, the parties should address how they propose to resolve their disputes re the value of the property and the cost of necessary repairs - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the Court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tracey P Nubia Represented By John M Boyko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Debtor(s):
Oscar J. Gutierrez Represented By
Rabin J Pournazarian
Joint Debtor(s):
Maria A. Gutierrez Represented By
Rabin J Pournazarian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/30/20
Docket 23
Tentative Ruling for 5/28/20 (same as for 4/30/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the Debtor should be prepared to address the issues raised in the Chapter 13 Trustee's Comments Or Objection (dkt. 25).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Barbara I Beringer Represented By Devin Sawdayi
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/26/20, 04/30/20
Docket 62
Debtor(s):
George Allen Jordan Represented By
Richard Mark Garber
Joint Debtor(s):
Audrey Carolyn Jordan Represented By
Richard Mark Garber
Movant(s):
George Allen Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Audrey Carolyn Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/24/19, 11/21/19, 01/23/20
Docket 37
Tentative Ruling for 5/28/20:
Continue to 12/17/20 at 8:30 a.m. pursuant to the UST's request (dkt. 81). Appearances are not required on 5/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20 (same as for 11/21/19):
Appearances required. At the hearing on 10/24/19 this Court was persuaded to continue the matter to this date, based on the representation of counsel for the United States Trustee ("UST") that respondent Vanessa Watson has filed her own individual bankruptcy case (2:19-bk-19881-BR), to allow time for the
8:30 AM
UST to assess the effect of that bankruptcy filing and take appropriate action. There is no tentative ruling, but the UST should be prepared to provide this Court with an update on the status of its investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/24/19:
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Order Granting UST's 110 Motion for Fines and Disgorgement (dkt. 22) (the "Prior Order").
Reasons: The tentative ruling is to grant the relief requested for the reasons stated in the motion, except to note that the Prior Order was entered on 6/13/19 (and not 10/25/17 as stated in the motion).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Tammy Javonillo-Zimmerman Represented By Thomas B Ure
Movant(s):
United States Trustee (LA) Represented By Ron Maroko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20, 2/27/20, 4/30/20
Docket 96
Debtor(s):
Sandra Lisa Sandoval Represented By Raymond Perez
Movant(s):
JOSE MEJIA Represented By Jonathan T Nguyen Cynthia Grande
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 3/26/20, 4/30/20
Docket 128
Tentative Ruling for 5/28/20:
Impose $1,000.00 in coercive sanctions, for failure to respond to this Court's third order on this matter (dkt.133), in addition to the previous orders for $200.00 in punitive sanctions and $200.00 in prior coercive sanctions (see id. and Orders, dkt.128, 131), (2) report these sanctions to the California State Bar, and (3) take this matter off calendar (this Court will prepare the underlying orders denying Debtors' claim objections). Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/20:
8:30 AM
Bruce Boice, Esq. has failed to respond to (a) this Court's order to show cause why he should not be sanctioned (the "OSC," dkt.128) and (b) this Court's order continuing the hearing on the OSC and setting another deadline for his responde (the "Second Order," dkt.131). Under the Second order, Mr. Boice has already incurred $200.00 of punitive sanctions and $200.00 of coercive sanctions. There is no tentative ruling but, if Mr. Boice fails to appear at this continued hearing, this Court may impose additional coercive and/or punitive sanctions. Appearances required, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Mr. Bruce Boice, Esq. should be prepared to
8:30 AM
address the issues raised in this Court's order to show cause (dkt. 128).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rene Medina Represented By
Bruce A Boice
Joint Debtor(s):
Maria Medina Represented By Bruce A Boice
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 1121
The tentative ruling is to grant, subject to any persuasive opposition at the hearing. Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 362
Revised Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
The parties should be prepared to address the issues raised in Debtor's opposition (dkt. 371) and supplement (dkt.380). The tentative ruling is to permit Ms. Shanahan to appear on behalf of Debtor, and to grant a continuance to 8/4/20 at 10:00 a.m. to assess the situation at that point in view of the multiple developing situations: anticipated collections; reopening of the economy; and Debtor's health issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's opposition (dkt. 371).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Candice Candice Bryner
Movant(s):
U.S. Bank National Association, as Represented By
Dane W Exnowski
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel
10:00 AM
NEWREZ LLC
vs DEBTOR
Docket 74
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Evidence
This Court notes that the declaration attached to the motion is incomplete and/or contains changes to the mandatory form (which are hereby treated as a request to amend the form per LBR 9009-1). This Court makes no determination whether such omissions/changes would withstand an evidentiary objection. Nevertheless, this Court has considered the key documents because (a) there are no evidentiary objections and/or (b) those documents appear to be admissible on other grounds. In future the movant's failure to complete the form properly may result in denial of the motion sua sponte.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gabriel S Fernando Represented By Julie J Villalobos
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HERITAGE ESTATES OF COMPTON HOMEOWNERS ASSOC
vs DEBTOR
Docket 80
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
HERITAGE ESTATES OF Represented By
Erica T Loftis Pacheco Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 68
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jamie Nolyn Bitolas Represented By
Hale Andrew Antico
Movant(s):
WELLS FARGO BANK, Represented By April Harriott Keith Labell Theron S Covey Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON TRUST COMPANY
vs DEBTOR
Docket 75
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 78).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth William J Smyth
Movant(s):
THE BANK OF NEW YORK Represented By Sean C Ferry Theron S Covey Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 43
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Arturo Torres Represented By Stephen L Burton
Joint Debtor(s):
Linda Torres Represented By
Stephen L Burton
Movant(s):
U.S. Bank National Association Represented By Merdaud Jafarnia James F Lewin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, N.A.
vs DEBTOR
Docket 40
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robby Christopher Hilliard Jr. Represented By Scott Kosner
Movant(s):
WELLS FARGO BANK, N.A., AS Represented By
Eric P Enciso Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LEGACY MORTGAGE ASSET TRUST 2019-SL3
U.S. BANK TRUST NATIONAL ASSOC vs
DEBTOR
Docket 75
Debtor(s):
Patricia Smith Represented By Joy M Johnson
Movant(s):
Legacy Mortgage Asset Trust 2019- Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MIDFIRST BANK
vs DEBTOR
Docket 34
- NONE LISTED -
Debtor(s):
Alex E Varilla Represented By Amanda G Billyard
Movant(s):
MidFirst Bank Represented By Josephine E Salmon Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE MONEY SOURCE, INC.
vs DEBTOR
Docket 32
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dennis Ezell III Represented By Laleh Ensafi
Movant(s):
The Money Source, Inc. Represented By Mukta Suri Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 31
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 33).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Arthur Armando Hernandez Represented By Natalya Vartapetova
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] THE BAN OF NEW YORK MELLON
vs
DEBTOR
Docket 25
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, because dismissals not infrequently are vacated and/or certain types of relief can be granted even in a dismissed case, this court grants relief from the automatic stay as follows.
10:00 AM
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marciano Antunez Represented By Onyinye N Anyama
Movant(s):
The Bank of New York Mellon f/k/a Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 26
Debtor(s):
Jose Roberto Salazar SR Represented By
D Justin Harelik
Joint Debtor(s):
Maria Carmen Salazar Represented By
D Justin Harelik
Movant(s):
U.S. Bank National Association, as Represented By
Katherine S Walker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REHABBERS FINANCIAL, INC.
vs DEBTOR
Docket 141
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
Movant(s):
Rehabbers Financial, Inc. dba Represented By Joshua L Scheer
Erica T Loftis Pacheco Reilly D Wilkinson
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 37
- NONE LISTED -
Debtor(s):
Sarah VanDerBeets Represented By Kateryna Bilenka
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORPORATION
vs DEBTOR
Docket 41
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Cesar Navar Represented By
Jaime A Cuevas Jr.
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
RSUI INDEMNITY COMPANY
vs DEBTO R
Docket 631
Grant, on the terms set forth in Debtor's response (dkt. 638). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
RSUI Indemnity Company Represented By Kristin A Ingulsrud
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
10:00 AM
stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lenda Ruth Potts Represented By William G Cort
Movant(s):
Lenda Ruth Potts Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 52
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Alan Javier Represented By Marc A Goldbach
11:00 AM
Joint Debtor(s):
Jamie Pena Javier Represented By Marc A Goldbach
Movant(s):
Carolyn A Dye (TR) Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
Adv#: 2:20-01067 Lora v. Rehabbers Financial, Inc., DBA Aztec Financial et
Docket 1
- NONE LISTED -
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
Defendant(s):
Rehabbers Financial, Inc., DBA Pro Se
Rehabbers Financial, Inc. dba Pro Se
Susan Yen Pro Se
Plaintiff(s):
Candelario Lora Represented By James A Judge
11:00 AM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 1
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre Kevin R Broersma
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
11:00 AM
Adv#: 2:20-01070 Korean Western Presbyterian Church of Los Angeles v. The Western
Docket 1
Dismiss this adversary proceeding for the reasons set forth in the Trustee's unilateral status report (adv. dkt. 8). The Trustee is directed to file appropriate papers and/or lodge a proposed order via LOU dismissing this proceeding within 7 days after the hearing date. Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth Won Lee
11:00 AM
Defendant(s):
Tony Park Pro Se
Genchun Park Pro Se
Chris Seungwook Hwang Pro Se
Yong Ki Kim Pro Se
Geon Oh Seo Pro Se
Suk Ho Jin Pro Se
Paul Jongun Seo Pro Se
Jung Gi Na Pro Se
Dan In Choe Pro Se
Samuel S. Kim Pro Se
Nathanael Yun Pro Se
Jong Suk Choi Pro Se
Hun Sung Park Pro Se
LA Open Door Presbyterian Church Pro Se World Korean Presbyterian Church Pro Se Presbyterian Church in Korea Pro Se
The Western Presbytery of the Pro Se
Plaintiff(s):
Korean Western Presbyterian Church Represented By
Won Lee
Trustee(s):
Jason M Rund (TR) Represented By
John N Tedford IV Brad Krasnoff
11:00 AM
Aaron E de Leest
11:00 AM
Adv#: 2:20-01071 Korean Western Presbyterian Church of Los Angeles v. The Western
Docket 1
Dismiss this adversary proceeding for the reasons set forth in the Trustee's unilateral status report (adv. dkt. 5). The Trustee is directed to file appropriate papers and/or lodge a proposed order via LOU dismissing this proceeding within 7 days after the hearing date. Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth Won Lee
11:00 AM
Defendant(s):
Tony Park Pro Se
Genchun Park Pro Se
Chris Seungwook Hwang Pro Se
Yong Ki Kim Pro Se
Geon Oh Seo Pro Se
Suk Ho Jin Pro Se
Paul Jongun Seo Pro Se
Jung Gi Na Pro Se
Dan In Choe Pro Se
Samuel S. Kim Pro Se
Nathanael Yun Pro Se
Jong Suk Choi Pro Se
Hun Sung Park Pro Se
LA Open Door Presbyterian Church Pro Se World Korean Presbyterian Church Pro Se Presbyterian Church in Korea Pro Se
The Western Presbytery of the Pro Se
Plaintiff(s):
Korean Western Presbyterian Church Represented By
Won Lee
Trustee(s):
Jason M Rund (TR) Represented By
John N Tedford IV Brad Krasnoff
11:00 AM
Aaron E de Leest
11:00 AM
Adv#: 2:20-01074 Hwang et al v. Yun et al
Docket 1
The tentative ruling is to remand this proceeding back to state court for the reasons set forth in the Trustee's unilateral status report (adv. dkt. 8), subject to the conditions set forth therein. The Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
11:00 AM
Won Lee
Defendant(s):
Joo Mo Ko Pro Se
Bong Kim Pro Se
Korean Western Presbyterian Church Represented By
Dan W Lee LA Open Door Presbyterian Church Pro Se Korean Western Presbyterian Church Pro Se
Suk Ho Jin Pro Se
Hun Sung Park Pro Se
Samuel S. Kim Pro Se
Nathanael Yun Represented By Monica Y Kim
LA Open Door Presbyterian Church Pro Se
Plaintiff(s):
Ki Ok Cho Pro Se
Chris Seungwook Hwang Pro Se
Genchun Park Pro Se
Tony Park Pro Se
Yong Ki Kim Pro Se
Geon Oh Seo Pro Se
Kook Bong Lee Pro Se
Jason Lee Pro Se
Ji Tammy Hwang Pro Se
Joyce Kim Pro Se
11:00 AM
Trustee(s):
Jason M Rund (TR) Represented By
John N Tedford IV Brad Krasnoff Aaron E de Leest
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
Docket 1
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
There is no tentative ruling. The parties are directed to address the issues raised in this Court's "Order (1) Taking Trial Off Calendar and (2) Setting Status Conference" (adv. dkt. 37).
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv.dkt.14).
11:00 AM
Deadlines: [intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/8/19:
Appearances required.
Tentative Ruling for 2/5/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address the following revisions to this Court's scheduling order (adv. dkt. 12). See Joint Status Report (adv. dkt. 14) and Notice of Ruling (adv. dkt. 15).
(a) Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 2/15/19. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A Continued status conference: N/A
Lodge Joint Proposed Pre-Trial Order: 2/21/19 Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: 2/ (for the format of exhibits and other trial procedures, please see Judge Bason's
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Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 2/28/19 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address a new discovery deadline and other revisions to this Court's scheduling order (adv. dkt. 12). See Joint Status Report (adv. dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Appearances required. The court has reviewed defendant/debtor Quinn's unilateral status report (dkt. 7) and the other filed documents and records in this adversary proceeding. Counsel for the plaintiff/creditor Duff is directed to address why no status report was executed by plaintiff.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
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Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 8/24/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 10/8/18. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 11/27/18.
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Joint Status Report: 11/13/18.
Continued status conference: 11/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
Trustee(s):
David M Goodrich (TR) Pro Se
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Adv#: 2:19-01181 Elissa D. Miller, Chapter 7 Trustee v. NANO
(3) Recovery of Avoided Transfer [11 U.S.C. section 550]; (4) Declaratory Relief; and (5) Turnover [11 U.S.C. section 542] fr. 8/20/19, 10/29/19, 1/28/20, 03/31/20
Docket 1
Tentative Ruling for 6/2/20:
Continue to 8/4/20 at 11:00 a.m., to provide the parties time to finalize their settlement (see adv.dkt.10) and, if necessary or appropriate, obtain approval under Rule 9019 (Fed. R. Bankr. P.). Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Rima Adam Nano Represented By
G Marshall Hann
Defendant(s):
ADMON NANO Represented By Gary A Starre
Plaintiff(s):
Elissa D. Miller, Chapter 7 Trustee Represented By
Jeremy Faith Noreen A Madoyan Anna Landa
Trustee(s):
Elissa Miller (TR) Represented By Noreen A Madoyan Anna Landa
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Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Missing status report(s)
As of the preparation of this tentative ruling, the parties have not filed status report(s). Why not?
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether
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the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 6/16/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: TBD Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 7/14/20
Continued status conference: 7/28/20 at 11:00 a.m.
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Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the documents and records filed in this adversary proceeding.
Current issues
No evidence that Defendant has been served
As of the preparation of this tentative ruling, there is no proof of service demonstrating that Defendant has been served with the summons and complaint. Is there any reason why this proceeding should not be dismissed based on Plaintiff's apparent failure to prosecute this action?
No status report
Plaintiff has not filed a unilateral status report. Why not? The tentative ruling is that this provides another basis for this Court to dismiss this proceeding.
The following are Judge Bason's standard requirements for status
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conferences.
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
Deadlines: This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 1/21/20
Continued status conference: If this proceeding is not dismissed: 2/4/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for
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the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Pro Se
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
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Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Cont'd hrg re: Motion for Dismissal and Other Related Sanctions Against Plaintiff Twisted Oliver Holdings, LLC fr. 01/02/20, 2/5/20, 02/18/20, 4/7/20
Docket 22
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Movant(s):
Charles S Dickens Represented By
Eric Bensamochan
Charles S Dickens Pro Se
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker Joseph Chora
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps
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Jeffrey L Sumpter
1:00 PM
Docket 198
Please see the tentative ruling for the status conference (Calendar no. 3, 6/2/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Liat Talasazan Represented By Giovanni Orantes Giovanni Orantes Giovanni Orantes Giovanni Orantes Luis A Solorzano Luis A Solorzano Luis A Solorzano Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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Docket 49
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Order to show cause (dkt. 209, "OSC"), and responses (dkt.223-28)
Remove Debtor as a debtor in possession (11 U.S.C. 1185(a)) and expand the duties of the Subchapter V Trustee (the "Trustee") (11 U.S.C. 1183(b)(2)&(5)), for the reasons set forth in the OSC (dkt.209, incorporating dkt.208) and in the responses by the United States Trustee ("UST") and other non-debtor parties in interest (dkt.223-24 & 226-28). The tentative ruling is that, although Debtor's desire to save her family's homes and conduct her businesses is understandable, and although Debtor's reluctance to refinance or sell any properties at this time is also understandable, Debtor has lost the privilege of having primary control over the chapter 11 case based on her unauthorized merchandizing business(es) and, alternatively, the each of the other separate causes for such relief as set forth in the OSC and the non- debtor parties' responses, including but not limited to gross mismanagement and, alternatively, lack of compliance with her disclosure requirements.
Debtor is reminded that, even if she is no longer a debtor in
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possession, she will still have duties, including cooperation with the Trustee's attempts to faciliatate a chapter 11 plan. See, e.g., 11 U.S.C. 1187, 1189.
Any failure to comply with such duties may result in sanctions, conversion of the case to chapter 7, and/or other remedies.
Regarding the scope of the Trustee's powers and duties, the tentative ruling is to order that the Trustee shall have all of the powers and duties set forth in 11 U.S.C. 1183(b)(2) and (5). But, as to the Trustee's investigation, the tentative ruling is to authorize and direct the Trustee to conduct only such investigation as the Trustee deems appropriate under that statutory provision (incorporating by reference 11 U.S.C. 1106(a)(3)), bearing in mind the costs and benefits of any such investigation. In addition, the tentative ruling is to suspend any requirement that the Trustee must file any written statement of the investigation. Instead, the tentative ruling is that it is appropriate to adopt the more efficient and flexible alternative of relying on the Trustee's oral reports at future status conferences (unless and until otherwise ordered by this Court).
Motion for postpetition DIP financing (dkt.198), Oxygen funding, Inc.'s ("Oxygen") opposition (dkt. 211), Debtor's reply & supplemental papers (dkt. 202, 203, 213, 214, 215, 216, 222)
The tentative ruling is to overrule Oxygen's objections, but to defer granting the motion and instead continue this matter to the same time as the continued status conference (see part "(2)" of this tentative ruling, below).
The basis for such continuance is to give the Trustee and opportunity to conduct investigations and make a recommendation whether or not to authorize the refinancing requested in the motion (or if, instead, some other transaction would be preferable). The grounds for overruling Oxygen's objections are:
there is no evidence that Oxygen made any fixture filing or otherwise perfected any alleged lien as against the Fuller Ave. property, and therefore any interest it may have in that property appears unperfected and avoidable (11 U.S.C. 544),
the proposed reduction in interest rate appears to generate a benefit to the bankruptcy estate that will (after a few months) more than offset the transaction costs, all of which may aid Debtor's husband's cash flow, which provides potentially greater flexibility in attempting to negotiate a plan (and, although Debtor's husband may not have any legal obligation to assist,
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he appears to have both personal and financial incentives to do so), and
neither Oxygen nor any other party in interest appears to be prejudiced in the long term by the proposed refinancing of the senior lien.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 6/16/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 6/9/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 209
Please see the tentative ruling for the status conference (Calendar no. 3, 6/2/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 270
Please see the tentative ruling for the post-confirmation status conference (Calendar no. 5, 6/2/20 at 1:00 p.m.).
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
Movant(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
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4/22/19, 5/14/19, 6/11/19, 7/30/19, 9/24/19, 10/15/19,
11/12/19, 12/17/19, 2/4/20, 3/3/20, 3/31/20
Docket 1
Tentative Ruling for 6/2/20:
Grant the motion for entry of a final decree and order closing case (dkt. 270) and vacate the post-confirmation status conference scheduled for 9/29/20 at 1:00 p.m. Appearances are not required on 6/2/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Reorganized Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
1:00 PM
4/7/20
Docket 1
Tentative Ruling for 6/2/20:
Continue as set forth below. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 8/14/20 using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/4/20 at 1:00 p.m. Brief status report due 7/21/20.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
Docket 5
Tentative Ruling for 6/2/20:
Continue as set forth below. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 6/30/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 6/16/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron
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Docket 1
Revised Tentative Ruling for 6/2/20:
Appearances required by counsel for the Debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Unauthorized DIP financing and/or business out of the ordinary course?
Debtor's March Monthly Operating Report ("MOR") (dkt. 105, Ex. B, PDF p. 6) states that it "borrowed $159,975 from the majority shareholder, Best Rich." What was the nature of this loan and on what terms? Was this out of the ordinary course of Debtor's business in violation of 11 U.S.C.
363(b)? Did Debtor obtain post-petition financing without seeking prior authorization from this Court under 11 U.S.C. 364? What assurances can Debtor provide to this Court and interested parties that Debtor is making full and accurate disclosures about its business operations when this information was buried in an MOR?
The tentative ruling is to issue an order to show cause ("OSC") why this bankruptcy case should not be converted or dismissed, or other appropriate relief should not be granted, based on the foregoing.
Deadlines/dates. This case was filed on 1/15/20.
1:00 PM
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representations in its status report (dkt. 80).
Continued status conference: 6/16/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
This Court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 6
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
1:00 PM
Docket 1
Tentative Ruling for 6/2/20:
Continue as set forth below. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues.
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19, dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19, dkt. 16).
Plan/Disclosure Statement*: 8/3/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procesures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
fr. 4/21/20
Docket 27
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (Calendar no. 12, 6/2/20 at 1:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 23, 4/21/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
Movant(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 6/2/20:
Continue as set forth below. Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Amended budget motion (dkt. 57), amended schedules I & J (dkt. 56), no opposition is on file
The tentative ruling is to grant the motion on a final basis.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: file by 6/30/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
1:00 PM
Continued status conference: 6/16/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
fr. 04/21/20
Docket 41
Please see the tentative ruling for the status conference (calendar no. 14, 6/2/20 at 1:00 p.m.)
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Movant(s):
Kinecta Federal Credit Union Represented By Mark S Blackman
1:00 PM
Docket 1
Tentative Ruling for 6/2/20:
Appearances required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtors' First Amended Disclosure Statement (the "Disclosure Statement," dkt. 68) and First Amended Chapter 11 Plan (the "Plan," dkt. 69), ballot summary (dkt. 79), Status Report (dkt.87)
As Debtors have noted, there are no filed objections on the docket.
Debtors did stipulate with the California Department of Tax and Fee Administration (dkt.81) to continue this hearing, but Debtor reports (dkt.87) that the associated proof of claim has been withdrawn, so that no longer appears to be a potential obstacle to confirmation.
The tentative ruling is to approve the disclosure statement on a final basis; confirm the Plan; and set a post-confirmation status conference as set forth below.
Proposed orders: Debtor is directed to lodge two proposed orders via LOU within 7 days after the hearing date - one for the Disclosure Statement and one for the Plan. The latter should include a paragraph setting the post-confirmation status
1:00 PM
conference. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (order, dkt. 25, timely served, dkt. 28).
Procedures order: dkt. 8 (timely served, dkt. 22)
Plan/Disclosure Statement (dkt. 68, 69)*: See above
Post-Confirmation status conference: 8/4/20 at 1:00 p.m., brief
written status report due 7/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report?
This Court's order (dkt.83) required a status report 7 days prior to this hearing. No status report was filed. Why not?
1:00 PM
Debtors' First Amended Disclosure Statement (the "Disclosure
Statement," dkt. 68) and First Amended Chapter 11 Plan (the "Plan," dkt. 69), ballot summary (dkt. 79)
As Debtors noted, there are no filed objections on the docket; but Debtors did stipulate with the California Department of Tax and Fee Administration (dkt.81) to continue this hearing. Subject to any issues that might be properly raised at this time, the tentative ruling is to approve the Disclosure Statement on a final basis; confirm the Plan; and set a post- confirmation status conference as set forth below.
Proposed orders: Debtor is directed to lodge two proposed orders via LOU within 7 days after the hearing date - one for the Disclosure Statement and one for the Plan. The latter should include a paragraph setting the post-confirmation status conference. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 12/2/19 (order, dkt. 25, timely served, dkt. 28).
Procedures order: dkt. 8 (timely served, dkt. 22)
Plan/Disclosure Statement (dkt. 68, 69)*: See above
Post-Confirmation status conference: 8/4/20 at 1:00 p.m., brief
written status report due 7/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 94
Please see the tentative ruling for the status conference (Calendar no. 17, 6/2/20 at 1:00p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Movant(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
fr. 4/21/20
Docket 44
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Movant(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Docket 1
Revised Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
Mediation
At a hearing on 3/3/20, this Court ordered the jointly administered Debtors and Elegant to participate in mediation. What is the status of those efforts?
Chan Monthly Operating Report ("MOR") (dkt. 102)
Debtor Chan's April MOR reflects bi-weekly payroll income from AC Air Technology ("Air") (pdf p. 15), which he indicates he only started receiving post-petition. But Debtor Chan has not filed a declaration of current and post- petition income and expenses (on the Local Form).
In addition, it is unclear what funds previously have been or currently
1:00 PM
are being received from or disbursed to or by Debtor Chan's affiliates, including but not limited to his non-filing spouse and her family. See dkt.107, pp.2:5-4:4. As pointed out by Le Elegant Bath, Inc. ("Elegant") (dkt.107, p.2:4-15), absent a valid agreement regarding separate property, it appears that Debtor and his bankruptcy estate may have a community property interest in the non-debtor spouse's income. In addition, all three Debtors are reminded of the following provision from this Court's identical orders in all three bankruptcy cases:
4. Affiliates. For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses and (b) any spouse. See §§ 101(2) & (9); Rule 2015.3; SBE v. Woo, 82 Cal. App.4th 481, 483-84 (2000). Prior authorization of this Court is required for Debtor to cause any affiliate to act out of the ordinary course of that affiliate’s business (§ 363(c)). Debtor may request at the principal status conference to be excused from these requirements. [Order (Chan dkt.3),
p.2:13-19.]
All three Debtors are reminded that failing to abide by the above- quoted order; failing to provide accurate reporting of revenues and expenses; and failing to obtain approval for the use of cash collateral (11 U.S.C. 363(c)) or for transactions out of the ordinary course (11 U.S.C. 363(b)) can be grounds for conversion or dismissal of this case or appointment of a chapter 11 trustee. See 11 U.S.C. 1104, 1112.
Debtor Chan's amended budget motion (dkt.44, amended by dkt.94), opposition of Le Elegant Bath, Inc. ("Elegant") (dkt. 107), Debtor Chan's reply (dkt. 114)
The tentative ruling is to direct Debtor Chan no later than 6/9/20 to file amended MORs, amended Bankruptcy Schedules I and J, a statement of postpetition income and expenses (on the mandatory local form), and a further amended budget motion, all in compliance with the requirements summarized above. The tentative ruling is not to authorize any further responses to the amended budget motion at this time, but instead to hold a further interim hearing on the (amended) budget motion concurrent with the continued status conference (see part "(2)" of this tentative ruling below). At that time this Court can determine whether to set a briefing schedule, or other
1:00 PM
procedures in connection with whatever further amended budget motion is filed by Debtor Chan.
(c) Debtor Brass's cash collateral motion (dkt. 11), first interim order authorizing cash collateral (dkt. 37), Elegant's opposition (dkt. 47), Brass's reply (dkt. 49), second interim order authorizing cash collateral (dkt. 58)
The tentative ruling is to grant the motion on a final basis, on the same conditions set forth in the second interim order authorizing debtor's use of cash collateral (dkt. 58).
Proposed orders: Debtor Brass is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/16/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
This Court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
(1) Use of Cash Collateral on an Interim Basis; and (2) Setting Final Hearing on Use of Cash Collateral
fr. 02/18/20, 3/3/20
Docket 11
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the Chan status conference (Calendar no. 17, 6/2/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot Beth Gaschen
Movant(s):
A Touch of Brass, Inc. Represented By Jeffrey S Shinbrot Beth Gaschen
1:00 PM
Docket 234
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
E&W Consulting, LLC Pro Se
1:00 PM
Docket 235
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Six Degrees Law Group Pro Se
1:00 PM
Docket 236
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Levene, Neale, Bender, Yoo & Brill Represented By
Ron Bender
1:00 PM
for Approval of Fees and Reimbursement of Expenses
Docket 242
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Fabrique Ltd. Pro Se
1:00 PM
Docket 243
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Official Committee of Unsecured Represented By
Ian Landsberg Sklar Kirsh, LLP
1:00 PM
Docket 244
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Official Committee of Unsecured Represented By
Ian Landsberg Sklar Kirsh, LLP
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 02/18/20, 4/21/20
Docket 5
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 18, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
1:00 PM
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20
Docket 1
Tentative Ruling for 6/2/20:
Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Scheduling
Previously this Court set 6/30/20 at 1:00 p.m. as the continued date for hearings on (i) the continued interim use of cash collateral and (ii) a continued Status Conference. The tentative ruling is to vacate those hearings and instead hear both matters to the date set forth below for the continued status conference (see part "(2)" of this Tentative Ruling, below), so that Debtor's projections for 7/4/20 can be compared against actual performance.
Cash collateral motion (dkt. 5, as supplemented, dkt. 238), East West Bank opposition to Debtor's supplement (dkt. 249), and Debtor's reply (dkt. 253)
Grant on an interim basis, but with a cap of $250,000 on aggregate distributions on professional fees, with a continued hearing as set forth above.
1:00 PM
Second interim fee application of E&W Consulting, LLC (dkt. 234, 237, 252)
Allow E&W Consulting, LLC $228,184.27 in fees and $15,967.65 in expenses, for a total of $244,151.92. The tentative ruling is to authorize payment on a pro rata basis with other professionals based on the limits on the use of cash collateral this Court orders after resolution of the issues set forth in Section 1(a) above.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Second inteirm fee application of Six Degrees Law Group (dkt. 235, 237, 251)
Allow Six Degrees Law Group $13,640.00 in fees and $81.50 in expenses, for a total of $13,721.50. Applicant is authorized to draw down on the retainer balance of $20,077.59.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Second interim fee application of Levene, Neale, Bender, Yoo & Brill LLP (dkt. 236, 237, 251)
Allow Levene, Neale, Bender, Yoo & Brill LLP $96,240.50 in fees and
$4,469.94 in expenses, in addition to $750.00 of expenses incurred during the period covered by but not included in the first interim fee application, for a total of $101,460.44. The tentative ruling is to authorize payment on a pro rata basis with other professionals based on the limits on the use of cash collateral this Court orders after resolution of the issues set forth in Section 1(a) above.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
First interim fee application of Sklar Kirsh, LLP (dkt. 242, 237, 245)
1:00 PM
Allow Sklar Kirsh, LLP $12,550.00 in fees and $1,094.25 in expenses, for a total of $13,644.25. The tentative ruling is to authorize payment on a pro rata basis with other professionals based on the limits on the use of cash collateral this Court orders after resolution of the issues set forth in Section 1(a) above.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
First interim fee application of RSR Consulting, LLC (dkt. 243, 237,
245)
Allow RSR Consulting, LLC $55,271.00 in fees and $2,595.29 in
expenses, for a total of $57,866.29. The tentative ruling is to authorize payment on a pro rata basis with other professionals based on the limits on the use of cash collateral this Court orders after resolution of the issues set forth in Section 1(a) above.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
First interim fee application of Goldstein & McClintock LLP (dkt. 244, 237, 245)
Allow Goldstein & McClintock LLP $69,282.75 in fees and $292.85 in expenses, for a total of $69,575.60. The tentative ruling is to authorize payment on a pro rata basis with other professionals based on the limits on the use of cash collateral this Court orders after resolution of the issues set forth in Section 1(a) above.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
1:00 PM
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of
such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/7/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 16
Grant the motion (docket no. 18, 19) on an interim basis, subject to any opposition at the hearing and the conditions set forth below, with a final hearing on 6/30/20 at 1:00 p.m., and a deadline of 6/9/20 for the movant to file and serve a notice of the final hearing. In addition, any transfers to insiders cannot be made without complying with the United States Trustee guidelines for compensation of insiders.
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-2.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
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Minimum adequate protection
In addition to the postpetition security interests that are automatically provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Grant of, and limitation on, postpetition liens
The tentative ruling is to grant postpetition liens to any creditors holding secured claims by granting replacement liens, but such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to
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attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 18, 19, 22), Order shortening time (dkt.
16)
The tentative ruling is to grant the motion on an interim basis subject to
opposition at the hearing and the terms and conditions set forth in the tentative ruling for calendar no. 27, 6/2/20 at 1:00 p.m.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Untimely service of procedures order
Debtor's proof of service of the procedures order states that service was made on 5/27/20, which is more than "2 Court days after" the procedures order was entered on the docket on 5/22/20. Debtor is cautioned that failure to comply with orders of this Court in future may result in adverse consequences.
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Local Form 2014-1
Per the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) any application to employ professionals (e.g., dkt.13) must be acompanied by Local Form 2014-1. Please see those Procedures for further information.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: To be set at continued status conference.
Procedures order: dkt.7 (served one day late, dkt. 14)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/30/20 at 1:00 p.m., initial case status report due 6/14/20 (see Procedures Order).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
2:00 PM
Docket 1
Tentative Ruling for 6/2/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including the March MOR (dkt. 121) and latest filed Status Report (dkt. 132).
Debtor's counsel should be prepared to propose a deadline for any objections to claims, and to file a Plan and Disclosure Statement. See dkt. 132, p.3:3-4.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: see above. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 4
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
2:00 PM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
2) Slander of Title; 3) Unfair Business Practices; 4) Elder Financial Abuse; 5) Violation of FCRA; 6) Accounting; 7) Declaratory Relief
Docket 1
Continue to 6/16/20 at 2:00 p.m., concurrent with the hearing on Defendant's motion to dismiss. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
2:00 PM
Defendant(s):
U.S. BANK NATIONAL Pro Se
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
2:00 PM
Docket 6
Tentative Ruling for 6/2/20:
Continue as set forth below. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 6/16/20 at 2:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
1:00 PM
Docket 56
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor is directed to address whether she is in fully compliance with United States Trustee's requirements. See dkt. 75, pp. 2&15. Debtor is reminded that, as she acknowledges (id.), she may have to file a motion for use of cash collateral and a revised budget motion when she restrarts her business(es), including full disclosure of the gross revenues, expenses, and calculation of net income from each business (see dkt.80, p.2).
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 11/2/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
1:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Migan Murray Represented By Andrew Moher
9:00 AM
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Movant(s):
Wyndham Vacation Resorts, Inc. Represented By
Daniel M Eliades Michael B Lubic
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 369
- NONE LISTED -
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Candice Candice Bryner
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Robert P Zahradka
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel
10:00 AM
WILMINGTON TRUST, NATIONAL ASSOICATION
vs DEBTOR
Docket 28
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Fretze Maria Majied Represented By Philomena N Nzegge
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SPECIALILZED LOAN SERVICING LLC
vs DEBTOR
Docket 44
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current (b) whether they will agree to the terms of an adequate protection order and/or (c) whether Movant will consent to a 30 day continuance (see the debtor's response, dkt. 47).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Movant(s):
Specialized Loan Servicing LLC Represented By
Mukta Suri
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] NATIONSTAR MORTGAGE, LLC
vs
DEBTOR
Docket 22
- NONE LISTED -
Debtor(s):
Douglas Wallace Represented By Eva M Hollands
Movant(s):
Nationstar Mortgage LLC d/b/a Mr. Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Glen Yamil Valladares Represented By William J Smyth
Movant(s):
Glen Yamil Valladares Represented By William J Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
or Continuing the Automatic Stay as the Court Deems Appropriate
Docket 7
Grant, subject to the following conditions, and also subject to any opposition at the hearing (see dkt. 10). Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (other than the motion papers): Docket entries for Debtor's two most recent bankruptcies (2:20-bk-11450-NB, 2:20-bk-12746- NB).
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court
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will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Nora Alicia Saenz Represented By Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 6/16/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the hearing on 3/26/20 this Court declined to order adequate protection payments or set a deadline for a sale or refinance, in view of the alleged equity in the property and the COVID-19 situation. But (a) this Court cautioned Debtor about the need to move forward with a refinance, sale, or other resolution of the parties' issues, and (b) this Court directed Debtor to file a status report no later than 6/2/20.
As of the preparation of this tentative ruling, no status report has been filed. Debtor is directed to address what sanction should be imposed for disregarding this Court's order to file a status report.
On the merits, the tentative ruling is to set a deadline of 9/15/20 to file and serve a motion for a sale or refinance to pay off movant, and self- calendar that motion for hearing no later than 10/22/20 at 8:30 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/20 (same as for 3/10/20 except for telephonic procedures):
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate regarding the issues addressed in the tentative ruling for 2/18/20 (reproduced below). Has this matter been resolved?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This matter was continued to this date (a) to allow time for Debtor to substitute in new counsel and (b) for Debtor to determine whether she can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments. The tentative ruling is to set a deadline of 4/6/20 for Debtor to file and serve a motion seeking authorization for one of those methods of curing her defaults, to be self-
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calendared for hearing no later than 4/30/20 at 8:30 a.m. Meanwhile, the tentative ruling is to continue this hearing to 4/7/20 at 10:00 a.m.
Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that Debtor as the owner of the property is competent to provide an opinion as to its value, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By William D Bowen
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DITECH FINANCIAL LLC
vs DEBTOR
Docket 49
Debtor(s):
Ryan Gregory Ortiz Represented By Charles J Brash
Joint Debtor(s):
Debra Diane Ortiz Represented By Charles J Brash
Movant(s):
Ditech Financial LLC Represented By Daniel K Fujimoto Julian T Cotton Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 31
Tentative Ruling for 6/16/20:
Continue this hearing to 8/24/20 at 10:00 a.m., in view of the three month forbearance agreement (see dkt. 35). Appearances are not required on 6/16/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bryan C Woods Pro Se
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Joint Debtor(s):
Donna P Woods Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 56
Debtor(s):
Rose J West Represented By
Daniela P Romero
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G, MORTGAGE-BACKED SECURITIES, 2018-G
vs DEBTOR
Docket 30
Debtor(s):
Alfred Ken Wing Li Represented By Ryan A. Stubbe
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF NEW YORK MELLON TRUST CO
vs DEBTOR
Docket 26
Debtor(s):
Travestine Lenette Casey Represented By Onyinye N Anyama
Movant(s):
Bank of New York Mellon Trust Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 147
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joshua L Scheer
10:00 AM
HERITAGE ESTATES OF COMPTON HOMEOWNERS ASSOC
vs DEBTOR
Docket 80
Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/2/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/2/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
HERITAGE ESTATES OF Represented By
Erica T Loftis Pacheco Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Application for fees and expenses [David M. Goodrich, Ch. 7 Trustee]
Docket 23
Approve the Trustee's final report and allow the Trustee $387.00 in fees and
$406.50 in expenses, for a total award of $406.50. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Patricia L Fisher Represented By
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Mark J Markus
Joint Debtor(s):
Rodney D Fisher Represented By Mark J Markus
Trustee(s):
David M Goodrich (TR) Pro Se
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Docket 310
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Background
Finnian Osakpamwan Ebuehi and Elizabeth Olohirere Ebuehi ("Debtors") filed a voluntary chapter 11 case on 9/12/18. On 10/18/19, this Court entered an order converting the case to chapter 7 (dkt. 161).
Peter J. Mastan is the Chapter 7 Trustee (the "Trustee"). As part of the Trustee’s efforts to administer Debtors’ estate, the Trustee sought authority to employ real estate brokers to assist the Trustee in marketing and selling the estate’s real property, including Debtors’ residence located at 619
W. Gladstone Street, Glendora, CA 91740 (the "Gladstone Property") (dkt. 219), which this Court approved by order entered 1/28/20 (dkt. 232).
Trustee moves for order compelling Debtors to turn over the Gladstone Property
On 3/10/20, the Trustee filed a "Motion for (1) Order to Compel Turnover of Property of the Bankruptcy Estate and Establishing Procedures for Removal and Disposal of Any Remaining Personal Property, and (2) Writ of Assistance (dkt. 263, the "Turnover Motion"). That motion was self- calendared for hearing on 3/31/20 at 11:00 a.m.
Among other things, the Turnover Motion described a considerable
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period of alleged non-cooperating by Debtors, and sought an order compelling Debtors to personally vacate the Gladstone Property and remove all personal property within two business days of entry of any order on the motion (Id.). Debtors did not file an opposition to the Turnover Motion.
In advance of the hearing on the Turnover Motion, this Court posted a tentative ruling indicating its intent to grant the Turnover Motion in its entirety. Debtors did not appear (telephonically), either through counsel or individually, to contest the tentative ruling. This Court adopted the tentative ruling as the final ruling.
On 4/2/20, this Court entered its "Order Compelling Turnover of Property of the Bankruptcy Estate and Establishing Procedures for Removal and Disposal of any Remaining Personal Property; Writ of Assistance (dkt. 282, the "Turnover Order").
Debtors seek reconsideration of Turnover Order
After the hearing on the Turnover Motion, on April 2, 2020, Debtors filed an opposition to the Turnover Motion (dkt. 279), but Debtors did not alert this Court to that filing or take any other action in connection with that filing.
In addition, the opposition failed to attach any evidence in support of Debtors’ arguments.
On 3/3/20, Debtors filed an "Emergency Motion for Stay of Order of April 2, 2020, for Turnover of Property" (dkt. 303, the "Reconsideration Motion"), pursuant to which Debtors sought a stay of the effectiveness of this Court’s Turnover Order and other related relief. On 5/5/20, the Trustee filed an opposition and requested in that opposition that this Court issue an order to show cause re contempt (dkt. 304).
On 5/6/20, this Court issued its "Order Denying Motion for Reconsideration of Turnover Order" (dkt. 307), denying the Reconsideration Motion without prejudice. That order also denied without prejudice the Trustee’s request for issuance of an OSC, because that request was required to be made via a separate motion.
As of the preparation of this tentative ruling, Debtors have not renewed their request for reconsideration of the Turnover Order.
Trustee’s motion for issuance of order to show cause ("OSC") re contempt, and issuance of the OSC
On 5/8/20, the Trustee filed his "Motion for Order to Show Cause re Civil Contempt and Sanctions against Debtors" (dkt. 310, the "Sanctions Motion"). On 5/15/20, Debtors filed an opposition (dkt. 315).
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On 5/19/20, this Court issued the requested OSC (dkt. 318). The OSC directs Debtors to appear telephonically at a hearing on 6/16/20 at 11:00 a.m. to show cause why this Court should not enter an order pursuant to Rules 7070 and 9020 (Fed. R. Bankr. P.) that holds them in civil contempt for violating the Turnover Order and imposes compensatory and coercive sanctions against them.
The OSC also directs Debtors to file a response by no later than 6/2/20 that, among other things, attaches "evidence of any efforts to lease alternative housing accommodation(s) and any efforts undertaken in preparation of moving, such as emails to prospective moving services or to prospective renters of storage space, etc." (dkt. 318, p.3:10-14). On 6/2/20, Debtors filed their response (dkt. 329).
Debtors advance two arguments. First, they repeat the arguments previously made in the Reconsideration Motion that their illnesses and the current "shelter-in-place" restrictions imposed by COVID-19 have prevented them from being able to arrange to move out and find suitable alternative accommodations. Second, Debtors dispute the Trustee’s factual allegations that they have been uncooperative with the Trustee’s broker’s efforts to show the Gladstone Property to prospective buyers. Debtors’ response also attaches e-mail correspondence dated 5/26/20, 5/27/20, 5/28/20, and 6/1/20 (dkt. 329, Exs. 2-5) in support of their contention that since the issuance of the Turnover Order, they have tried to comply with the Turnover Order in good faith.
On 6/9/20, the Trustee submitted his reply (dkt. 334).
Debtors' request for an advance on their possible future proceeds from their homestead exemption
Included within Debtors' response to the OSC is their request for an order directing the Trustee to advance them funds on account their possible future proceeds from their homestead exemption. The tentative ruling is to deny Debtors' request for multiple alternative reasons.
First, Debtors have not filed and served a separate motion seeking such relief, so that request is not properly presented for consideration at this time. Second, Debtors have not cited any persuasive legal authority in support of compelling the Trustee to advance anticipated net proceeds on their homestead. Third, as the Trustee points out in his reply (dkt.334,
p.7:7-16), Debtors have not provided evidence that they actually need an
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advance in order to move out. Fourth, as unfortunate as it might be for Debtors to have to move to a smaller or less attractive home, many debtors have to move out of their homes (some even have no choice but to be homeless) and this Bankruptcy Court is not aware that it has any authority to require creditors to loan debtors funds for housing. Fifth, even if this Bankruptcy Court had some legal and evidentiary basis to require an advance of prospective homestead proceeds, any such advance does not appear to be appropriate on the present record, based on the evidence of Debtors' ongoing obstruction of the Trustee's administration of the estate and depletion of available funds for creditors.
Contempt and Sanctions
For the reasons set forth in the Trustee’s motion (dkt. 310) and reply (dkt. 334), the tentative ruling is to hold Debtors in contempt of this Court and impose sanctions as set forth below.
Legal standards
Bankruptcy courts have the authority to impose civil contempt sanctions under 11 U.S.C. 105(a). In re Dyer, 322 F.3d 1178, 1189-90 (9th Cir. 2003). "The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court." Dyer, 322 F.3d at 1191. "The burden then shifts to the contemnors to demonstrate why they were unable to comply." F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). "A person fails to act as ordered by the court when he fails to take all the reasonable steps within his power to ensure compliance with the court's order." Rosales v. Wallace (In re Wallace), 490 B.R. 898, 905 (9th Cir. BAP 2013).
Contempt
In support of the Sanctions Motion, the Trustee submitted a copy of the Turnover Order (dkt. 310, Ex. 2) which states, among other things, that:
[t]he Debtors . . . shall deliver possession of the Gladstone Property to the Trustee (by personally vacating the Gladstone Property, removing all of their personal property from the Gladstone Property, leaving the Gladstone Property in broom-clean condition, and delivering to the Trustee the keys to the Gladstone Property, security codes for all security systems, and any garage door and/or driveway gate remote controls that may exist) within two (2) business days
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after the entry of the Order on this Motion. [Id., p.2:17-24.]
The Trustee also attaches evidence establishing that Debtors have
willfully failed to vacate the Gladstone Property by April 7, 2020 as required by the Turnover Order (Mastan Decl., ¶6).
Based on the foregoing, the tentative ruling is that the Turnover Order is definite and specific and the Trustee has met his prima facie burden of showing by clear and convincing evidence that Debtors have violated the Turnover Order by failing to vacate and deliver possession of the Gladstone Property to the Trustee by April 7, 2020. The tentative ruling is also that the burden shifted to Debtors to demonstrate why they were unable to comply with the Turnover Order and they have not established that they took all reasonable steps within their power to ensure compliance with that order.
In response to the Sanctions Motion and OSC, Debtors do not dispute that they are aware of the Turnover Order and have not moved out of the Gladstone Property (see dkt. 329, Elizabeth Ebuehi Decl., ¶ 15; Finnian Ebuehi Decl., ¶ 16). Instead, Debtors offer a number of excuses for their non-compliance, but their evidence does not substantiate their claims and contains too many gaps for this Court to find that they have adequately rebutted the Trustee's evidence that they are willfully flouting this Court’s Turnover Order.
As set forth in the Trustee's reply (dkt.334, pp.3:2-4:5 and p.7:7-16) (i) Debtors' evidence shows only very belated attempts to pursue other housing;
(ii) Debtors' evidence shows that they have pursued housing only of a type that they find suitable to the lifestyle they would like to maintain (as distinguished from cheaper housing, or moving in with their children, or exploration of any other alternatives); (iii) Debtors present no evidence of exploration of alternative means of obtaining even that more expensive housing, such as using the money that they are not spending (by living rent- free at the expense of the bankruptcy estate) to save for a large security deposit or prepaid rent; and (iv) Debtors have presented no evidence whatsoever of any attempts to arrange for the sale or storage or other disposition of their personal property in anticipation of actually moving out.
To the contrary, the evidence before this Court appears to show only minimal efforts to relocate – most of which occurred after the issuance of the OSC. This falls far short of the evidentiary showing Debtors are required to make to avoid a finding of contempt. See e.g. FTC v. Affordable Media, 179 F.3d at 1241 (finding inability to comply with a court order is a defense, but
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the burden is on the contemnor to show "categorically and in detail" how compliance is "impossible"); United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980) (It is not enough to show "substantial," "diligent," or "good faith" efforts to comply (as opposed to making all reasonable efforts to comply); Reno Air Racing Assn. Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006).
Additionally, Debtors' focus on whether they have cooperated with the Trustee's sale efforts is misplaced. Assuming solely for the sake of argument that Debtors had cooperated in every respect (contrary to the evidence presented), the Turnover Order directs Debtors to completely vacate the Gladstone Property, so any such cooperation is not enough. If Debtors had a sufficient basis to be excused from compliance with the Turnover Order, their recourse would have been to file an amended motion seeking reconsideration of the Turnover Order or other relief, but they have not done so.
Accordingly, on this record, this the tentative ruling is to find Debtors in contempt of this Court and impose sanctions as set forth below.
Compensatory Sanctions
In view of this Court’s tentative finding that Debtors have willfully failed to comply with the Turnover Order, the tentative ruling is to grant the Trustee’s request for compensatory sanctions. Therefore, the tentative ruling is to conduct a hearing on 6/30/20 at 11:00 a.m. to determine the appropriate amount of compensatory sanctions.
If the foregoing tentative ruling is adopted, the Trustee is directed to submit a supplemental declaration setting forth all fees and expenses the estate has incurred as a result of Debtors' failure to comply with the Turnover Order by June 19, 2020. The deadline for Debtors to submit a response is June 23, 2020. The Trustee is directed to lodge a scheduling order within 1 day after this hearing.
Coercive Sanctions
The tentative ruling is to impose coercive sanctions against Debtors, in the amount of $500 per day, for each calendar day that they continue to holdover in the Gladstone property. The tentative ruling is that, although Debtors were required by the Turnover Order to turn over possession on 4/7/20, the coercive sanctions cannot run from that date because such sanctions would be punitive, not coercive, and this Bankruptcy Court generally lacks the authority to impose punitive sanctions.
But once the Trustee filed and served the motion for contempt sanctions, on 5/8/20, Debtors were on notice that the Trustee sought coercive
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sanctions of $500 per day. See dkt. 310, p.10:17-22. Therefore the tentative ruling is that the sanctions should run from 5/8/20 and continue until Debtors have surrendered possession of the Gladstone Property and fully complied with the Turnover Order.
Given the evidence of Debtors’ lack of any meaningful effort to comply with the Turnover Order, the tentative ruling is that this Court must find that imposition of coercive sanctions is the only way to ensure that the Trustee will be able to perform his duties and administer the Gladstone Property for the benefit of the estate.
Debtors' alleged non-cooperation with sale process
The tentative ruling is that the Trustee has presented considerable evidence that Debtors have willfully flouted this Court's Turnover Order not just by failing to vacate the Gladstone property but also in another way: by impeding the Trustee’s efforts to sell the Gladstone Property. But some of that evidence has been presented in the Trustee's reply papers (dkt.334).
This Court recognizes that on this issue both sides are presented with "a moving target." The Trustee is still attempting to sell the Gladstone Property, and estpecially while Debtors remain at that property their cooperation or lack of cooperation in the sale process is an ongoing issue.
Therefore, the tentative ruling is to set a deadline of June 19, 2020 for Debtors to file and serve their evidence in opposition to the evidence in the Trustee's reply (dkt.334), and a deadline of June 23, 2020 for the Trustee to file and serve any response to that evidence. The tentative ruling is that these issues will be considered at the continued hearing set forth above.
Proposed order: The Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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Adv#: 2:20-01098 Garcia et al v. Myllyla
Docket 1
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Pro Se
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Argaez De Chuc Represented By James A Judge
Jose Chuc Represented By
James A Judge
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Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
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Adv#: 2:19-01149 Cathay Bank, a California banking corporation v. Schaefer Ambulance
Docket 1
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
Schaefer Ambulance Service, Inc, a Represented By
Monserrat Morales Craig G Margulies
Louella M McNeal Represented By Frances M O'Meara
Samir Yanni Represented By
Michael J Khouri
Leslie M. McNeal Represented By Frances M O'Meara
Marlene L. McNeal Represented By Frances M O'Meara
James McNeal III Represented By Frances M O'Meara
Marlene McNeal Represented By
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Frances M O'Meara
James McNeal III Represented By Frances M O'Meara
Leslie M McNeal Represented By Frances M O'Meara
Plaintiff(s):
Cathay Bank, a California banking Represented By
Michael G Fletcher Reed S Waddell Gerrick Warrington
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Adv#: 2:20-01018 Acossano et al v. INTERNAL REVENUE SERVICE et al
fr. 4/7/20, 5/12/20
Docket 1
Debtor(s):
Martin Joseph Acossano Represented By Kevin T Simon John D Faucher
Defendant(s):
INTERNAL REVENUE SERVICE Represented By
John D Ellis
FRANCHISE TAX BOARD Represented By Brian D Wesley
Joint Debtor(s):
Denise Lorraine Acossano Represented By Kevin T Simon John D Faucher
Plaintiff(s):
Martin Joseph Acossano Represented By John D Faucher
Denise Lorraine Acossano Represented By John D Faucher
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Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 12/17/19, 02/18/20, 3/3/20
Docket 23
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Movant(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
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Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
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Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18,10/9/18, 11/27/18, 01/08/19, 2/5/19, 03/05/19, 04/30/19, 06/04/19; 07/30/19, 9/24/19, 11/12/19, 12/17/19, 02/18/20, 3/3/20
Docket 1
Revised Tentative Ruling for 6/16/20:
Continue to 8/18/20 at 11:00 a.m. so that, as soon as appropriate under the terms of the settlement, Plaintiffs can file and/or lodge appropriate papers resolving this adversary proceeding (e.g., file and serve a notice of voluntary dismissal, or a dismissal motion, or lodge a dismissal order, or whatever else may be necessary or appropriate under the applicable rules). See Rule 41 (Fed. R. Civ. P., incorporated by Rule 7041, Fed. R. Bankr. P.). Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
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fr. 3/3/20, 04/21/20
Docket 158
Revised Tentative Ruling for 6/16/20:
Grant the motion, in view of the Trustee's 6/16/20 report of no distribution. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
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Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow more time for the Trustee to continue efforts to sell the property. There is no tentative ruling, but the Trustee should be prepared to provide an update on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/3/20:
Deny. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Trusteee's opposition (dkt. 160) and request for hearing (dkt. 161); reply (dkt.162).
Reasons for denial: The tentative ruling is to deny the motion for abandonment because, although there is not a large amount of equity above the homestead exemption, there is some equity based on the only evidence before this Court, and Debtor's argument would enable any debtor in bankruptcy essentially to increase the homestead exemption by tens of thousands of dollars. It is very understandable that Debtors wish to retain
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their home, but the usual remedy is to enter into an arrangement with the Chapter 7 Trustee to buy out the bankruptcy estate's interest in the property.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing
Debtor(s):
Enrique Peralta Represented By Thomas B Ure
Joint Debtor(s):
Rosa Estrada Represented By
Thomas B Ure
Movant(s):
Enrique Peralta Represented By Thomas B Ure Thomas B Ure
Rosa Estrada Represented By
Thomas B Ure
Trustee(s):
Wesley H Avery (TR) Represented By Tamar Terzian
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Docket 16
Please see the tentative ruling for the status conference (calendar no. 2, 6/16/20 at 1:00 p.m.)
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 6/16/20:
Appearances required by counsel for the Debtor and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's application to employ general bankruptcy counsel (the "Employment Application," dkt. 16)
This Court's order (dkt. 53) set the Employment Application for hearing and directed Debtor to file and serve a declaration and/or brief addressing the issues set forth in the order no later than 6/2/20. As of the drafting of this tentative ruling, no such additional papers have been filed. Why not?
Debtor is directed to address the issues raised in this Court's order (dkt. 53).
Debtor's plan
Pursuant to 11 U.S.C. 1189(b), Debtor was required to file a plan no later than 6/4/20. As of the drafting of this tentative ruling, no plan has been filed. Why not? If no party in interest has sought any consequence for missing that deadline, should this Court impose any remedy sua sponte?
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Monthly Operating Report ("MOR") (4/20) (dkt.57)
The MOR shows that Debtor has only $168.94 in the bank. The MOR shows substantial negative cash flow, even before including the unpaid quarterly sales taxes. The MOR also shows that Debtor's projection of
$8,000 for cash receipts in April of 2020 was off by $3,682.58, and if Debtor's projection of $8,000 of cash receipts for May of 2020 is off by a similar amount then Debtor will have a negative account balance. Is Debtor's business doing anything but depleting the bankruptcy estate?
In addition, this Court notes that Debtor's MOR has a typographical error (in line 22, "net case flow" instead of "net cash flow"). This suggests that the MOR is not on the US Trustee's official form. How can parties in interest and this Court rely on the completeness of the MOR if it is not on the official form?
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: See above
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
1:00 PM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/16/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor's principal(s) themselves, but pursuant to Judge Bason's COVID19 Procedures,
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telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements to appear. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report
Per this Court's scheduling order (dkt. 12), Debtor was required to file a status report no later than 14 days before this hearing (3/17/20). As of the drafting of this tentative ruling, no status report has been filed. Why not?
Debtor's emergency cash collateral motion (dkt. 23)
Grant on a final basis, on the same terms and conditions previously ordered (dkt. 33)
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/12/20 at 1:00 p.m., status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's emergency cash collateral (dkt. 23)
Grant on an interim basis, subject to (i) resolution of certain preliminary issues and (ii) certain conditions, as set forth in calendar no 1, 3/17/20 at 1:30 p.m.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., status report due 3/17/20 per order setting initial status conference (dkt. 12)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
1:00 PM
Docket 64
Please see the tentative ruling for the status conference (Calendar no. 3.10, 6/16/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
PHH Mortgage Corporation's motion for approval of stipulation re adequate protection and claim treatment (dkt. 64), no opposition is on file
The tentative ruling is to grant the motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: file by 6/30/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S.
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Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 6/30/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
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Docket 123
Please see the tentative ruling for the status conference (Calendar no. 4.2, 6/16/20 at 1:00 p.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
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Docket 112
Please see the tentative ruling for the status conference (Calendar no. 4.2, 6/16/20 at 1:00 p.m.).
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 1
Tentative Ruling for 6/16/20:
Appearances required by counsel for the Debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Outdated mailing address?
Debtor's petition designated 525 E. Colorado Blvd., Pasadena, CA 91101 (the "Colorado Blvd Address") as its address for purposes of service (dkt. 1). But Debtor subsequently rejected its sublease of certain premises located at the Colorado Blvd Address (dkt. 90, 92). As a result, it is not clear if Debtor has been receiving personal service of this Court's orders and/or papers filed in this case. By no later than 6/19/20 Debtor is directed to amend its address to ensure it is receiving notice of all papers and proceedings in this case.
Debtor's motion to extend exclusivity periods (dkt. 112, 113, 117, the "Exclusivity Motion"), untimely opposition of Christopher Becker ("Mr. Becker") (dkt. 127), order setting hearing on Exclusivity Motion (dkt. 129), Debtor's reply (dkt. 136), Mr. Becker's unauthorized sur-reply (dkt. 137)
The tentative ruling is to deny the motion. On the one hand, Mr.
Becker's opposition was not timely filed and served, and he offers no excuse
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for that untimeliness in his opposition papers. In addition, this Court recognizes the challenges presented by COVID19, and by the restaurant and cooking school businesses generally, all of which make it understandable that it would take more time than usual for Debtor to propose a chapter 11 plan.
On the other hand, even disregarding Mr. Becker's papers, this Court takes note of Debtor's representations that this case is administratively insolvent (dkt. 95, p.3:18-19), that Debtor does not anticipate that its business operations will resume (dkt. 123, p. 9:13-14), and that Best Rich no longer appears to be willing to purchase Debtor's business or continue to fund ongoing operations (id., p. 9:14-18). Considering these matters, and all other relevant facts and circumstances reflected in prior hearings and on the docket, the tentative ruling is that Debtor has not established sufficient cause to extend exclusivity, and to the contrary creditors would be better served by allowing exclusivity to terminate and permitting creditors an opportunity to propose a viable plan.
Weintraub & Selth, APC's fee application (dkt. 123, 124), declaration of Shaojing (Ewen) Xu in support of fee application (dkt. 132), MAC LBNA, LLC's ("MAC") limited opposition (dkt. 128), Debtor's reply (dkt. 135)
The tentative ruling is to approve Weintraub & Selth's request for fees in the amount of $110,208.12 and expenses in the amount of $1,925.16, for a total award of $112,133.28. As for the request for immediate payment, the tentative ruling is that on the legal issue Weintraub & Selth is correct that if funds are contributed to a debtor and are earmarked for payment to a professional then other administrative claimants such as MAC do not have a right to those funds. But the tentative ruling is that the declarations in support of such contribution and earmarking are too vague (and, as of the preparation of this tentative ruling, one is unsigned). When was the alleged earmarking agreement entered into? Is it in writing? Does the history of equity contributions to Debtor and Debtor's use of the funds suggest that the funds were to be used for all bankruptcy purposes or were earmarked for specific purposes?
The tentative ruling is to set a continued hearing, contemporaneous with the continued status conference (see part "(2)" of this tentative ruling, below). The tentative ruling is to set a deadline of two weeks prior to that continued hearing to file and serve any supplemental papers in support of
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payment out of such funds, and a deadline of one week prior for any supplemental opposition papers.
Proposed orders: Debtor is directed to lodge proposed orders - (i) one order terminating exclusivity and (ii) a second order allowing the requested fees and expenses but setting a continued hearing on payment out of the alleged earmarked funds - via LOU within 7 days after the hearing date and attach a copy of the relevant portion of this tentative ruling to each order, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representations in its status report (dkt. 80).
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub
1:00 PM
James R Selth
1:00 PM
Docket 128
Please see the tentative ruling for the status conference (Calendar no. 6, 6/16/20 at 1:00 p.m.).
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Steinberg, Nutter & Brent Law Corporation's second interim fee application (dkt. 128, 129), no opposition is on file
Grant the application and approve $28,125 in fees and $141.78 in expenses, for a total interim award of $28,266.78.
Proposed order: Applicant is directed to lodge a proposed order within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 8/14/20 (dkt. 78)
Procedures order: dkt. 2 (timely served, dkt.23).
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Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 1:00 p.m., Brief written status report due 6/30/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
Docket 1
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Pro Se
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Argaez De Chuc Represented By James A Judge
Jose Chuc Represented By
James A Judge
1:00 PM
Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
1:00 PM
Docket 6
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
fr. 4/21/20
Docket 216
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20
Docket 1
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/7/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
MICHAEL TREMBLAY, TRUSTEE
vs DEBTOR
Docket 9
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 11, 6/16/20 at 1:00 p.m.).
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 5/19/20 at 1:00 p.m.).
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the status conference (Calendar no. 10, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 4/7/20 at 1:00 p.m.).
Tentative Ruling for 3/10/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 3/10/20 at 1:00 p.m.).
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Tentative Ruling for 3/3/20:
Grant as set forth below. Appearances required.
Key documents reviewed: Original motion of Michael George Tremblay, as Trustee ("Tremblay") for relief from the automatic stay (dkt. 9), debtor's response (dkt. 11), Celtic Bank Corporation's limited objection (dkt. 18, 40), debtor's supplemental opposition and supporting declarations (dkt. 25, 26, 27, 29), stipulations to continue hearing and orders thereon (dkt. 62, 63, 83, 87), Tremblay's amended motion for relief from stay (dkt. 93), Debtor's opposition (dkt. 95) and evidentiary objections (dkt. 96), reply (dkt.119).
Analysis
Service
As Debtor points out (dkt.94, pp.4:13-5:2), under Rule 4001 (Fed. R. Bankr. P.) a motion for relief from the automatic stay must be served on Debtor's list of 20 largest general unsecured creditors. Debtor asserts that the motion was not served in accordance with that rule; but the original motion was (dkt.9, at PDF pp.61-64) and Debtor cites no authority that the amendments to the motion were so substantial that they would require re- noticing. Any creditor who cared to follow the progress of the original motion would be able to do so, and file any papers or make any arguments they wish. The tentative ruling is that Debtor's argument that additional service is required is not persuasive.
Evidentiary objections
The tentative ruling is to overrule Debtor's evidentiary objections (dkt.96), which are not well taken. For example, Debtor objects to Movant's valuation evidence on grounds of relevance. How can Debtor assert that the value of the subject property is irrelevant when it is clearly relevant under the statute (11 U.S.C. 362(d)(1) and (2)) and when the Amended Motion asserts (dkt.93, p.3, para.4.a.(1)(A)&(B) & p.4, para.4.b.) that (i) the subject property's value is inadequate to protect Movant's interest and is declining, and (ii) Debtor lacks any equity in the property (and that the property is not necessary to an effective reorganization)?
Valuation
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Although valuation is relevant, the tentative ruling is that this Court
cannot resolve the parties' valuation disputes without an evidentiary hearing (or other procedure, such as an agreement of the parties to be bound by the valuation determined by an independent appraiser selected by each of their appraisers). Normally this Court would set an evidentiary hearing (or other procedures) and establish associated deadlines and other procedures. But the tentative ruling is that all such procedures are unnecessary because Movant has shown other "cause" for relief from the automatic stay.
Cause for relief from the automatic stay
Movant asserts that Debtor has shown bad faith, and that this is "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). The tentative ruling is to agree.
This is Debtor's second bankruptcy case. The first case (Case No.
2:19-bk-21504-NB) was filed on 9/30/19 and dismissed on 11/5/19 for failure to file required documents. Before that case was dismissed, Tremblay filed a motion for relief from the automatic stay in which he pointed out that Debtor was ineligible for chapter 13 under 11 U.S.C. 109(e) and accused Debtor of intentionally misusing the bankruptcy system for purposes of delay. See Case No. 2:19-bk-21504-NB, dkt.10, p.5). Nevertheless, Debtor filed this case as another chapter 13 case on 11/20/19.
This Court recognizes that at the time each case was filed Debtor had no attorney of record. But Debtor owns multiple real properties and two businesses (one that recently ceased operating), and there is no showing that Debtor is unsophisticated.
Nor is there any showing that Debtor was unable to read and understand Tremblay's motion, or was unable to find an attorney to represent her, despite her substantial alleged assets and income. This Court takes judicial notice that other debtors with a range of assets, liabilities, income, expenses, and other characteristics regularly understand the chapter 13 debt limits and regularly retain bankruptcy attorneys, especially after having been accused of misusing the bankruptcy system.
In other words, Movant has established a prima facie showing that Debtor's two chapter 13 bankruptcy petitions were filed in bad faith. The burden is on Debtor to rebut that showing. Instead, the tentative ruling is that Debtor has done the opposite.
True, Debtor belatedly retained an attorney, and filed a motion to
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convert this case to chapter 11, which this Court granted effective just over two months ago, on 1/2/20. Subsequently, however, this Court has noted Debtor's lack of prosecution of this chapter 11 case. See Tentative Rulings for Status Conference (calendar no. 16, 3/3/20 at 1:00 p.m.).
Even now, over three months after the petition date (11/20/19), Debtor still has not proposed any sale of her properties, or other method to pay her creditors within a reasonable time. Debtor's filed papers suggest that she is entirely reliant on rental income, but that income is uncertain and the net amount apparently is very modest (if anything), after mortgages and other expenses (see Tentative Ruling for Status Conference, calendar no.16 on 3/3/20 at 1:00 p.m.). See also Jan. MOR (dkt.103) ($0 income reported).
Debtor proposes a chapter 11 plan (dkt.97) that appears unconfirmable on its face. As Movant points out, the plan proposes to modify Movant's claim (and another claim) both of which appear to be secured only by an interest in Debtor's principal residence, in contravention of 11 U.S.C.
1123(b)(5). See dkt.97, pp.3:1-4:10. Moreover, the plan proposes what appear to be interest-only payments with a balloon payment of the entire principal many months later. See dkt.97, Ex.A & A-1, at PDF pp.8&10, Classes 2A & 2B. See also dkt.119, p.3:1-8.
For all of these reasons, the tentative ruling is that Debtor has filed and has prosecuted (or failed to prosecute) her two bankruptcy cases in bad faith. The tentative ruling is that this is sufficient "cause" for relief from the automatic stay under 11 U.S.C. 362(d)(1). Specifically, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
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any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 1/28/20 at 1:00 p.m.).
Tentative Ruling for 12/17/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 11). In addition the tentative ruling is that if this Court grants any relief to Movant, it will grant parallel relief to junior creditors, including creditor Celtic Bank Corporation (see dkt. 40) and alleged secured creditor Oxygen Funding, Inc., to exercise whatever remedies they may or may not have under applicable nonbankruptcy law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes
1:00 PM
Movant(s):
Luis A Solorzano
Michael Tremblay, Trustee Represented By
David I Brownstein
1:00 PM
Docket 49
Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Case progress
At the last hearing on 6/5/20, this Court removed debtor as debtor in possession and expanded the powers and duties of the Subchapter V Trustee (see dkt. 232). There is no tentative ruling, but the parties should be prepared to update this Court on any progress that has occurred since the last hearing.
The parties also should be prepared to address whether this Court should set a new deadline for Debtor to file an amended disclosure statement and amended plan at this time.
Motion for relief from stay by Mr. Tremblay as trustee (as amended, dkt. 93), debtor's supplemental declaration (dkt. 129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no. 10, 6/16/20 at 1:00 p.m)
The tentative ruling is to take this motion off calendar, without prejudice
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to filing any amended motion for relief from the automatic stay in future. The reasons are as follows.
At prior hearings this Court was persuaded to continue this matter. As for Debtor's alleged bad faith, the tentative ruling is that any bad faith by Debtor herself is no longer sufficient cause for relief from the automatic stay because this Court has removed Debtor as a debtor in possession - although, if Debtor were to fail to cooperate with the Subchapter V Trustee, or otherwise fail to comply with her ongoing duties, that might change. As for valuation of the property, the tentative ruling is that it is premature to address that issue, until the Subchapter V Trustee has had an opportunity to explore options for dealing with the property and negotiating with creditors.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
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Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
(1) Employment of Leech Tishman Fuscaldo & Lampl, Inc. as Special Counsel Pursuant to Bankruptcy Code Sections 327(e) and 330 and for Payment of Post- Petition Retainer from Non-Debtor; (2) Employment of Leech Tishman
Fuscaldo & Lampl, Inc. as Chapter 11 Counsel Upon Satisfaction of Certain Conditions and Payment of Additional Post-Petition Retainer, Pursuant to Bankruptcy Code Sections 327(a), 330, and 1107, FRBP 2014 and LBR 2014-1; and (3) Interim Compensation Procedures
fr. 5/19/19
Docket 72
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 14, 6/16/20 at 1:00 p.m.).
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (Calendar no. 2, 5/19/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
fr. 6/2/20
Docket 94
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 14, 6/16/20 at 1:00 p.m.).
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (Calendar no. 17, 6/2/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Movant(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
6/2/20
Docket 1
Tentative Ruling for 6/16/20:
Grant the pending employment application and budget motion as set forth below, and continue the Status Conference as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
Holding's Application to Employ Leesh Tishman Fuscaldo & Lampl, Inc.'s ("Leesh Tishman") (dkt. 72, 75), UST's opposition (dkt. 81), Elegant's opposition (dkt. 89), Leesh Tishman's reply (dkt. 95), Interim employment order (dkt. 113), Holding's supplemental reply (dkt. 122)
The tentative ruling is to grant the application, and authorize Leesh Tishman's employment under 11 U.S.C. 327(a) and 330, subject to Judge Bason's standard employment terms.
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Debtor Chan's amended budget motion (dkt. 132, 133), Debtor Chan's declaration re postpetition income and expenses (dkt. 131, 134)
The tentative ruling is to grant the amended budget motion. In addition, the tentative ruling is to direct Debtor Chan no later than 6/19/20 to file his amended bankruptcy Schedules I&J separately (not just as exhibits to his budget motion) so that they appear on the docket as separate items.
Proposed orders: Debtors are directed to lodge separate proposed orders via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/28/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 7/14/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Revised Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
1:00 PM
appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
Mediation
At a hearing on 3/3/20, this Court ordered the jointly administered Debtors and Elegant to participate in mediation. What is the status of those efforts?
Chan Monthly Operating Report ("MOR") (dkt. 102)
Debtor Chan's April MOR reflects bi-weekly payroll income from AC Air Technology ("Air") (pdf p. 15), which he indicates he only started receiving post-petition. But Debtor Chan has not filed a declaration of current and post- petition income and expenses (on the Local Form).
In addition, it is unclear what funds previously have been or currently are being received from or disbursed to or by Debtor Chan's affiliates, including but not limited to his non-filing spouse and her family. See dkt.107, pp.2:5-4:4. As pointed out by Le Elegant Bath, Inc. ("Elegant") (dkt.107, p.2:4-15), absent a valid agreement regarding separate property, it appears that Debtor and his bankruptcy estate may have a community property interest in the non-debtor spouse's income. In addition, all three Debtors are reminded of the following provision from this Court's identical orders in all three bankruptcy cases:
4. Affiliates. For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses and (b) any spouse. See §§ 101(2) & (9); Rule 2015.3; SBE v. Woo, 82 Cal. App.4th 481, 483-84 (2000). Prior authorization of this Court is required for Debtor to cause any
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affiliate to act out of the ordinary course of that affiliate’s business
(§ 363(c)). Debtor may request at the principal status conference to be excused from these requirements. [Order (Chan dkt.3),
p.2:13-19.]
All three Debtors are reminded that failing to abide by the above- quoted order; failing to provide accurate reporting of revenues and expenses; and failing to obtain approval for the use of cash collateral (11 U.S.C. 363(c)) or for transactions out of the ordinary course (11 U.S.C. 363(b)) can be grounds for conversion or dismissal of this case or appointment of a chapter 11 trustee. See 11 U.S.C. 1104, 1112.
Debtor Chan's amended budget motion (dkt.44, amended by dkt.94), opposition of Le Elegant Bath, Inc. ("Elegant") (dkt. 107), Debtor Chan's reply (dkt. 114)
The tentative ruling is to direct Debtor Chan no later than 6/9/20 to file amended MORs, amended Bankruptcy Schedules I and J, a statement of postpetition income and expenses (on the mandatory local form), and a further amended budget motion, all in compliance with the requirements summarized above. The tentative ruling is not to authorize any further responses to the amended budget motion at this time, but instead to hold a further interim hearing on the (amended) budget motion concurrent with the continued status conference (see part "(2)" of this tentative ruling below). At that time this Court can determine whether to set a briefing schedule, or other procedures in connection with whatever further amended budget motion is filed by Debtor Chan.
(c) Debtor Brass's cash collateral motion (dkt. 11), first interim order authorizing cash collateral (dkt. 37), Elegant's opposition (dkt. 47), Brass's reply (dkt. 49), second interim order authorizing cash collateral (dkt. 58)
The tentative ruling is to grant the motion on a final basis, on the same conditions set forth in the second interim order authorizing debtor's use of cash collateral (dkt. 58).
Proposed orders: Debtor Brass is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/7/20.
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Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/16/20 at 1:00 p.m., concurrent with other matters. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
This Court anticipates posting a tentative ruling at a later time.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
2:00 PM
8/20/19, 9/17/19, 10/15/19, 10/29/19, 12/10/19,
1/28/20, 03/31/20
Docket 5
Tentative Ruling for 6/16/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the United States Trustee ("UST") to convert, dismiss, or appoint a Chapter 11 trustee (the "UST Motion", dkt. 76)
Debtor's counsel is directed to address (i) the status of his efforts re determining the amount of tax claims and (ii) whether Debtor intends to proceed with a structured dismissal as contemplated by this Court at the 12/10/19, 1/28/20, and 3/31/20 hearings.
Deadlines/dates. This case was filed on 12/17/18.
Bar date: 7/24/19 (not timely served but excused, dkt. 120)
Plan/Disclosure Statement*: N/A
Continued status conference: if this case is not dismissed by then, or a continued status conference is not otherwise mooted, set a continued status conference for 8/18/20 at 2:00 p.m., with no
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written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior Tentative Rulings omitted]
Debtor(s):
Jackies Cookie Connection LLC Represented By
Derrick Talerico Marlee E Sherman Michael S Kogan David B Zolkin
2:00 PM
Docket 134
- NONE LISTED -
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19,
3/10/20
Docket 5
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: See above
Continued status conference: 8/18/20 at 2:00 p.m., no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
Docket 65
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
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in Order to Give the Parties Additional Time to Complete the Procedural Matters Needed to Finalize an Agreement and the Related Rule 9019 Motion with Joinder by Secured Creditor Wilmington Savings Society Fund, FSB Not in its Individual Capacity but Soley in its Capacity as Trustee
fr. 4/21/20, 5/5/20
Docket 203
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar no. 31, 4/21/20 at 1:00p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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debtor in possession on insurance claims related to damage to her Bel Air Rd property
fr. 4/7/20, 4/21/20, 5/5/20
Docket 167
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar No. 31, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
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4/21/20, 5/5/20
Docket 1
Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's eligibility to elect Subchapter V
On 6/4/20, Debtor amended her petition to elect application of Subchapter V of chapter 11 of the Bankruptcy Code (dkt. 238, p.4, line 13). On 6/8/20, the UST filed a notice of appointment of John-Patrick McGinnis Fritz as Subchapter V Trustee (dkt. 240). This Court questions whether Debtor is eligible to elect Subchapter V.
Debtor is not within the debt limit for a "small business debtor": an aggregate of $2,725,625 or less of noncontingent liquidated secured and unsecured debts as of the petition date. 11 U.S.C. 101(51D)(A). Debtor's Summary of Assets and Liabilities (dkt. 232, at PDF p. 35) lists $6,792,923.99 in total liabilities as of the petition date.
Debtor's status report notes that "the debt limit was increased under the provisions of the Coronavirus Aid, Relief, and Economic Security (CARES) Act." Dkt.236, p.3:26-28. It is true that 11 U.S.C. 1182(1) was
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amended, effective March 27, 2020, to raise the debt limit to $7,500,000. But the CARES Act (Pub. Law 116-136, section 1113) provides that such amendment "shall apply only with respect to cases commenced [under the Bankruptcy Code] on or after the date of enactment of this Act" (with a sunset provision after one year). Debtor's bankruptcy petition was filed on 7/17/19.
So it appears that Debtor is ineligible to elect to proceed under Subchapter V.
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
The hearing on the MTD has been continued many times. The UST's reasons for seeking relief have expanded as this case has continued. In addition, this Court has expressed its own concerns, and is prepared to act on its own motion under 11 U.S.C. 105(a).
The MTD seeks either dismissal, conversion, or appointment of a chapter 11 trustee. The tentative ruling is that there is cause for relief under 11 U.S.C. 1104 and 1112, and that appointment of a chapter 11 trustee is in the best interests of creditors, for the reasons set forth in the tentative ruling for 5/5/20, part (1)(a) and prior tentative rulings (reproduced below).
In addition, another reason for appointment of a chapter 11 trustee is that any such trustee could act much the way a Subchapter V trustee might act, in terms of attempting to foster a consensual resolution. The UST might even select Mr. Fritz for that role, given his experience with this case already.
Nor would appointment of a chapter 11 trustee necessarily mean that Debtor would lose the ability to propose a plan, or that parties in interest would lose the benefits of the streamlined procedures in Subchapter V. For example, in small cases the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) contemplate a combined hearing on final approval of a disclosure statement and confirmation of a proposed plan, after any gating issues have been addressed at status conferences and/or through motion practice. See 11 U.S.C. 105(d)(2)(B)(vi) (authorizing combined hearing on plan and disclosure statement).
These are additional reasons why the tentative ruling is to appoint a chapter 11 trustee.
Application to employ public adjuster Asset Recovery Association
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dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217), Debtor's supplement (dkt. 241)
The parties should be prepared to address whether this Court should grant the Application, on the modified terms described in Debtor's supplement (dkt. 241). If this Court were to order the appointment of a chapter 11 trustee, and if is unknown whether that person will be Mr. Friz, then this issue might have to be deferred until the chapter 11 trustee is appointed and can be heard on this issue.
Contemplated motion to approve settlement with Wilmington Savings Fund ("Wilmington")
The tentative ruling is to take this matter off-calendar in view of (i) the tentative ruling to appoint a chapter 11 trustee and (ii) Debtor's representation that she will pursue approval of the contemplated settlement through her chapter 11 plan (dkt. 236, p.3:18-25).
Wilmington's motion for relief from stay (dkt. 147), James Haycock's response (dkt. 157), Shiv and Saroj Gupta's opposition (dkt. 158), Debtor's opposition (dkt. 159, 160), Andrea Friedlander's joinder to Gupta opposition (dkt. 163), Wilmington's reply (dkt. 165, 166), orders granting in part, denying in part, motion for relief from stay (dkt. 173, 174)
There is no tentative ruling. The parties should be prepared to discuss whether this motion should be taken off calendar, without prejudice to Wilmington resetting it for hearing, in view of the parties' representations that they have reached a settlement that will resolve this motion.
Deadlines/dates. This case was filed on 7/17/19, and designated by Debtor as a Subchapter V case on 6/4/20 (dkt. 238).
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/5/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
At the hearing on 4/21/20, this Court's tentative ruling was to appoint a chapter 11 trustee. That tentative ruling was based on the long history of this case without progress and with many mis-steps by Debtor regarding the business of running the estate.
Briefly, Debtor has alternated between:
presenting the subject property as being almost ready to rent out as an Air-BnB (at the start of this case), or as being so extensively damaged that it cannot be used at all (in the many months thereafter);
handling the claims-adjustment process herself (for a substantial time, without apparent progress), or belatedly hiring, without authorization, a claims adjuster (who would charge substantial fees, but
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whose fees would not be sufficient because the adjuster apparently contemplates hiring special counsel to represent the bankruptcy estate - all of which conceivably might be capable of being justified, but none of which has been supported despite this Court having granted continuances and set a deadline to provide supplemental information); and
proposing to refinance the subject property (but without fully paying off existing liens), or proposing to retain it, but without any apparent strategy for obtaining DIP financing, rehabilitating the property, and using it to generate income; or any other colorable business strategy for stemming the ongoing depletion of the bankruptcy estate.
In sum, if there is any viable business strategy, Debtor has given every indication of being unwilling to implement one. In addition, Debtor has used funds of the bankruptcy estate without authorization or adequate accounting, despite explanation by the United States Trustee ("UST") at the meeting of creditors (11 U.S.C. 341(a)) and the initial debtor interview ("IDI").
The foregoing issues are noted in the extensive prior tentative rulings reproduced below - see especially 10/29/19, 10/15/19, 9/24/19, and 8/20/19 - and in the filed papers of the UST and on the record at hearings. All of the foregoing appears to constitute "cause" for relief under 11 U.S.C. 1112(b), including but not limited to "(A) ... continuing loss to or diminution of the estate and the absence of a reasonable likelihood of rehabilitation, (B) gross mismangement of the estate; ... [and] (H) failure timely to provide
information ... reasonably requested by the United States trustee [regarding the filing of accurate MORs]." 11 U.S.C. 1112(b)(4). In addition, if this case were to be dismissed, the foregoing appears to constitute evidence of a willful failure to appear in proper prosecution of this case. 11 U.S.C. 109(g)(1).
Despite all of the foregoing, this Court was persuaded to continue the matter to this date. The purpose was to allow time for Debtor's proposed new counsel to substitute into the case - not because the current situation is in any way attributable to existing counsel, but instead because someone (either existing counsel or new counsel) needs to argue on Debtor's behalf, and if Debtor was in the process of switching counsel that could be awkward.
Since the last hearing this Court has issued an order (dkt. 221) approving a stipulation between Debtor and the United States Trustee permitting Debtor to continue using her trust account, subject to certain conditions. But the docket does not reflect any substitution of counsel, nor does the docket reflect any progress on all the other long-pending and critical
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issues noted above.
In addition, if Debtor could arrive at a viable business strategy, then she would have to propose a viable chapter 11 plan to implement that strategy and stop the running of high rates of interest (default and non- default). See Tentative Ruling for 4/7/20, part "(1)(b)" (reproduced below). The docket does not reflect any such plan, or any progress toward such a plan.
Based on the foregoing, the tentative ruling remains to appoint a chapter 11 trustee, to see if there is any viable way to reorganize this bankruptcy estate. If not, the tentative ruling is to dismiss this case with a 180 day bar under section 109(g)(1).
The UST should also be prepared to address whether there are any outstanding compliance issues.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217)
The tentative ruling is to deny this Application for lack of prosecution.
At the 4/7/20 hearing, this Court ordered Debtor to file a declaration(s) with an update on the projected repair costs. As of the preparation of this tentative ruling, Debtor still has not complied.
Contemplated motion to approve settlement with Wilmington Savings Fund ("Wilmington")
At the 4/7/20 hearing, this Court orally shortened time for Debtor to file a contemplated motion to approve a settlement with Wilmington that would resolve the parties' default interest, late fees, and other charges dispute, but set a deadline of 4/14/20 for Debtor to file and serve the motion. On 4/13/20, Debtor filed an ex parte application requesting modification of the filing and service deadlines (dkt. 203), which this Court treated as an application for hearing on shortened time and granted the application (dkt. 204). As of the preparation of this tentative ruling, no motion is on file. Accordingly, the tentative ruling is to deny the request to shorten time, and take this matter off- calendar, without prejudice to any similar request for relief in future (by a chapter 11 trustee, or anyone else).
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Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/16/20 at 1:00 p.m. Brief status report due 6/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
The tentative ruling is to appoint a chapter 11 trustee based on the long history of this case without progress and with many mis-steps by Debtor (as set forth in this tentative ruling and the extensive prior tentative rulings reproduced below). In addition, the UST should be prepared to address whether Debtor's March MOR (dkt. 208) sufficiently addresses the issues
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previously identified.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. At the last hearing, this Court ordered Debtor to file a declaration(s) with an update on the projected repair costs and a statement of disinterestedness. As of the preparation of this tentative ruling, Debtor has not complied. Why not?
Motion to approve settlement with Wilmington Savings Fund ("Wilmington")
At the last hearing, this Court orally shortened time for Debtor to file a motion to approve a settlement with Wilmington that would resolve the parties' default interest, late fees, and other charges dispute, but set a deadline of 4/14/20 for Debtor to file and serve the motion. On 4/13/20, Debtor filed an ex parte application requesting modification of the filing and service deadlines (dkt. 203), which this Court treated as an application for hearing on shortened time and granted the application (dkt. 204). As of the preparation of this tentative ruling, no motion is on file.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/19/20 at 1:00 p.m., concurrent with other matters. Brief status report due 5/2/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
There is no tentative ruling. The parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on:
the UST's MTD and related papers,
Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174),
Debtor's apparent history of mis-starts and poor management of this estate, including a long history of missed projections about how this case would progress, an abandoned attempt to retain a professional to rent out property as an Air-bnb, the belated and unsuccessful attempts to explore a sale or refinancing of the Bel Air property, and transfers of funds without adequate explanation (as referenced in this Court's prior tentative rulings for 10/29/29, 10/15/19, and 9/24/19, reproduced below).
Inadequate attempts to stop the running of default interest
An additional concern, which may bear on the MTD, is whether Debtor has made adequate attempts to stop the running of postpetition default interest payable to Patch of Land Lending, LLC ("Patch"). The tentative ruling is that she has not.
From the inception of this bankruptcy case this Court has raised
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concerns that default interest, late fees, and other charges are consuming any equity in the Bel Air property at a rapid rate. On 8/13/19 this Court issued an order conditionally continuing the automatic stay under 11 U.S.C. 362(c)
(3) and setting a deadline of 11/12/19 for Debtor to "file a motion to refinance the Bel Air Road property, or file a realistic plan of reorganization, or otherwise file appropriate papers aimed at stopping the running of postpetition default interest owed to Patch [of Land Lending]." Dkt. 31, Ex.1, p.1, item "(ii)" (emphasis added). Debtor filed a motion challenging the validity of Patch's assertion that it is entitled to default interest and late fees under 11 U.S.C. 506(b) (the "Default Interest Motion," dkt. 123). That is insufficient, for two reasons.
First, it is not enough to file the Default Interest Motion without prosecuting it. The hearing on that motion has been continued several times (dkt. 129, 133, 141) with the current hearing set to be heard 5/5/20 at 1:00
p.m. (dkt. 164).
Second, the Default Interest Motion has the effect of gambling that Debtor will prevail in her attempt to establish that no default interest is owed - an uphill battle that might well fail - rather than stopping the running of whatever interest turns out to be owed. See, e.g., East West Bank v.
Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019) (allowing default interest). This distinction is further explained below.
As a preliminary matter, it is helpful to recognize the different periods in which default interest may accrue:
Three categories of interest exist in bankruptcy cases: (1) interest accrued prior to the filing of the bankruptcy petition (prepetition interest); (2) interest accrued after the filing of a petition but prior to the effective date of a reorganization plan (pendency interest); and (3) interest to accrue under the terms of a reorganization plan (plan interest). ...
Generally, the Code does not provide for pendency interest to creditors, because the filing of the petition usually stops interest from accruing. Section 506(b), however, provides an exception for oversecured creditors:
To the extent that an allowed secured claim is secured by property the value of which, after any recovery under subsection (c) of this section, is greater than the amount of such claim, there shall be allowed to the holder of such
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claim, interest on such claim, and any reasonable fees,
costs, or charges provided for under the agreement or State statute under which such claim arose. [11 U.S.C. 506(b) (emphasis added).]
Thus, an oversecured creditor can recover pendency interest as part of its allowed claim, at least to the extent it is oversecured.
Any accumulated pendency interest determined under § 506(b) is added to the allowed claim of an oversecured creditor and then paid pursuant to the terms of the confirmed plan with plan interest determined under § 1129(b)(2)(A)(i)(II). [In re Beltway One Dev.
Group, LLC, 547 B.R. 819, 826 (9th Cir. BAP 2016) (emphasis added, citations omitted).]
There are only three ways that occur to this Court to stop the running of pendency default interest.
A sale under section 363
Debtor could sell the Bel Air property under 11 U.S.C. 363. That is only a partial remedy because it does not stop the running of pendency default interest before the proceeds are distributed. GECC v. Future Media, 547 F.3d 956 (9th Cir. 2008). But at least from that point forward it would stop the ongoing accrual of pendency default interest.
Unfortunately, a section 363 sale appears to be precluded because Debtor reports that any sale of the Bel Air property would result in capital gains taxes estimated at roughly $1 million. Dkt.159, p.17:1-4. In other words, the cure might be worse than the disease.
Refinancing the debt
Debtor attempted to refinance Patch's debt, but not fully. Patch objected, and this Court denied Debtor's refinancing motion. Debtor has not presented any alternative refinancing proposal. So this alternative appears to be unavailable.
Plan confirmation
The last way known to this Court to stop the running of pendency default interest is to confirm a plan that restructures the debt to Patch and reduces the interest rate. As with the other alternatives, this is only a partial remedy because it does not stop the running of pendency interest before the effective date of the plan. But at least it stops the accrual of default interest going forward.
An added benefit of confirming a plan used to be available under some
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decisions in the Ninth Circuit: retroactively eliminating all pendency default interest. See Beltway One, 547 B.R. 819, 826-28 (discussing In re Entz- White Lumber & Supply, Inc., 850 F.2d 1338 (9th Cir. 1988), and subsequent lower court decisions). But more recent guidance from the Court of Appeals has been interpreted to mean that pendency interest is not eliminated unless the claim is left unimpaired - i.e., unless all defaults in un-matured long-term debt are cured, or matured debt is paid in full on the effective date. See Beltway One, 547 B.R. 819, 826-28 (interpreting Future Media, 547 F.3d
956).
This Court expresses no opinion on these issues except to note that they exist. The point is that, at the very least, it appears that confirmation of a plan would provide a partial remedy because it would stop the ongoing running of pendency default interest, and replace it with plan interest going forward.
Conclusion as to default interest
Why has Debtor not attempted to move forward with a plan of reorganization to address the default interest?
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192)
There is no tentative ruling. Debtor should be prepared to provide this Court with an update on the 4/1/20 AIG inspection (dkt. 192, Bordon decl., para. 7) and AIG's response, if any, to the adjusted insurance claim of
$454,717.11 (id., para.6). Wilmington should be prepared to address under what conditions it would support employment of ClaimsXP (or any other adjuster).
If this Court is persuaded to grant the Application and authorize some form of employment of ClaimsXP retroactively to 1/7/20, employment will be subject to Judge Bason's standard employment terms (avaiable at www.cacb.uscourts.gov). Additionally, any employment will be subject to the filing of a satisfactory statement of disinterestedness as required by the posted Procedures of Judge Bason (id.) by 4/10/20.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt.
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188)
The tentative ruling is to grant the motion on the terms set forth in
Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right to object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Motion to allow Claim 31 filed by Deanna D’Egidio ("Claimant") (dkt. 152), debtor’s motion to extend opposition deadline (dkt. 186) and order thereon (dkt. 189), debtor's opposition (dkt. 187), claimant’s reply (dkt. 193)
The tentative ruling is to grant the motion on the terms set forth in Debtor’s opposition (dkt. 187) and Claimant’s reply (dkt. 193): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of
$44,500.00.
Proposed orders: Movants are directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 5/5/20 at 1:00 p.m., concurrent with other matters. Brief status report due 4/21/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 3/31/20:
Continue to 4/7/20 at 1:00 p.m.,concurrent with other matters. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180)
Continue to the same date and time as the continued status conference (see below), with a deadline of 4/6/20 at noon for Debtor to file amended bankruptcy schedules I & J, including all continuation sheets for line
8.a of schedule I.
At the continued status conference, the parties should be prepared to address whether this Court should appoint a chapter 11 trustee, convert this case, dismiss this case, or order other relief based on the UST's MTD and any argument at the hearing, based on the matters addressed in the MTD and supplement, Debtor's lack of progress noted in the relief from stay orders (dkt. 173, 174), Debtor's hiring of a claims adjuster on or about 1/7/20 (dkt.
167, p.3, para. 11) without authorization of this Court, and Debtor's apparent arrangement for the claims adjuster to hire counsel to represent the bankruptcy estate without authorization of this Court.
Motion to allow Claim 29 filed by Shiv Raj Gupta and Saroj Gupta ("Claimants") (dkt. 150), debtor's opposition (dkt. 178), claimants' reply (dkt. 188)
Continue to the same date and time as the continued status
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conference (see below). The tentative ruling is to grant the motion on the terms set forth in Claimants' reply (dkt. 188): namely, that the late-filed claim is allowed as a general unsecured claim in the amount of $284,664.66 without prejudice to Debtor's right ot object to any dollar amount that exceeds Debtor's admitted (scheduled) amount of $250,000.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 4/7/20 at 1:00 p.m., concurrent with other matters. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/14/20:
Continue all matters in this case that are on calendar today to the same date and time as the continued status conference (see below), based on Debtor's status report (dkt.142) and the other filed documents and records in this case. Appearances are not required on 1/14/20.
Current issues
This Court has no issues to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 3/31/20 at 1:00 p.m., brief status
2:00 PM
report due 3/17/20
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Appearances are not required on 12/10/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121), Firm's supplemental declaration (dkt. 128)
In view of the Firm's supplemental declaration and the absence of any supplemental responses from the UST or Patch, the tentative ruling is to approve fees of $54,010 and expenses of $0.00 on an interim basis, for a total award of $54,010, but no payment may be made absent further order of this Court.
Proposed order: The Firm is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
Continue to be concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
2:00 PM
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/14/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/12/19:
Appearances are not required on 11/12/19.
Current issues
Totaro & Shanahan's (the "Firm") 1st interim fee application (dkt. 111) (the "Fee Application"); UST's objection (dkt. 114); Patch of Land Lending, LLC's ("Patch") limited objection (dkt. 115); the Firm's reply (dkt. 121)
Continue to the same date and time as the continued status conference stated below. Set 11/19/19 as the deadline for the Firm to submit any supplement in support of the Application and 11/26/19 as the deadline for any supplemental responses from the UST and Patch.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; brief status report due 11/22/19
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
2:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/29/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling, but Debtor is directed to address the thousands of dollars of unauthorized payments to "Independent Contractor[s]" Ofir Engel and L. Napolitano, "McCarthy Construction," and cash withdrawals, as well as the other issues raised by the UST. Debtor is also directed to address what progress, if any, has been made on insurance claims, AirBnB arrangements, refinancing or selling the Bel Air and Sweetzer properties, and other aspects of this bankruptcy case.
Application to employ Totaro & Shanahan (the "Firm") (dkt. 63) (the "Employment Application"), Statement of disinterestedness (dkt. 100), UST Objection (dkt. 90), the Firm's errata (dkt. 97)
The tentative ruling is to grant the Employment Application, subject to any objection from the UST.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: TBD
2:00 PM
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/15/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Current issues
UST's motion to dismiss (dkt. 65), debtor's opposition (dkt. 86), no reply is on file
There is no tentative ruling. The parties should be prepared to address whether debtor has cured all outstanding compliance issues, and whether Debtor's second corrected opposition continues to have error(s) in calculating projected cash flow. That opposition lists net income before personal expenses for "Oct-19" and "Nov-19" as -5,850.00, but then after personal expenses of $1,751.00 for each month it lists "excess income" of $34,900.00. Dkt.94, Ex.1, at PDF pp.8-9. If the spreadsheet is wrong about those numbers, can creditors and this Court rely on the rest of Debtor's projections?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 12/10/19 at 1:00 p.m.; no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 10/4/19:
Appearances required.
Current issues
Motion for authority to obtain post-petition financing (dkt. 75, 76, 77, 80, 81, 82, 83, 84) (the "Finance Motion"); Alliance Portfolio/Private Equity Finance, Inc.'s Opposition (dkt. 91)
There is no tentative ruling. It appears no reply deadline was set, so debtor's reply will be allowed orally at the hearing.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The outcome of this motion is subject to this Court's decision whether to grant or deny the Finance Motion.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
2:00 PM
appropriate for disposition at this hearing.
Tentative Ruling for 9/24/19:
Appearances required. The Court has reviewed the Debtor's status report (dkt. 69).
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40)
There is no tentative ruling. The parties should be prepared to advise this Court on whether they will agree to an adequate protection order and the proposed $50,000 loan from Complete Business Solutions Group ("Complete") (dkt.69, p.2:21-25). The parties also should be prepared to address whether shortened time or other special procedures are requested regarding any proposed lending. See 11 U.S.C. 364; Rules 4001(c) & 9006(c)(2) (Fed. R. Bankr. P.).
Contemplated contract with Majestic Ventures LLC dba VacationHomes365.com ("Consultant") re marketing (Airbnb etc.)
Debtor is contemplating a contract with Consultant for marketing services. Dkt.69, Ex.2. As that contract points out (id., sec.7.2, p.44), Debtor is responsible for complying with legal obligations regarding short term rentals, and associated costs, including local taxes.
The parties should be prepared to address whether Consultant is a "professional" within the meaning of 11 U.S.C. 327; whether approval of the contract with Consultant is required under that section or section 363(b); and whether shortened time or other special procedures are requested regarding any proposed agreement with Consultant. See 11 U.S.C. 327, 363(b); Rules 2002(a)(2) & 9006(c)(2) (Fed. R. Bankr. P.).
Termination of prior real estate agent
Debtor reports (dkt. 69, para.3) that the previously authorized real estate agent has agreed to cancel the listing. Is that in writing? Will Debtor need any order related to that cancellation/termination? What assurance is there that this prior agent will not seek some sort of compensation?
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
2:00 PM
Plan/Disclosure Statement*: TBD
Continued status conference: 10/15/19 at 1:00 p.m to be heard concurrently with other matters on calendar. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/10/19:
Appearances required.
Current issues
In addition to addressing the general status of this case, the following issues will be addressed.
Motion of Alliance for Relief From Automatic Stay (dkt. 40) Grant, as set forth in calendar no. 3 (9/10/19 at 1:00 p.m.).
Employment Motion for The Turoci Firm (dkt. 23, 28)
Deny, as set forth in calendar no. 4 (9/10/19 at 1:00 p.m.). The parties should be prepared to address whether Debtor has arranged for alternate counsel.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
2:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/20/19:
Appearances required by counsel for the debtor and by debtor herself.
Current issues
Airbnb
Debtor's budget motion (dkt. 37, Ex.A, p.2) reveals that, althoug the Sweetzer property is "listed to be sold," meanwhile "Debtor intends to rent [that property] as an Airbnb." The tentative ruling is that this is a transaction out of the ordinary course, which requires notice, an opportunity for a hearing, and approval by this Court. 11 U.S.C. 363(b). Has Debtor already acted on this intent, without such approval?
In addition, this Court is concerned about (i) whether Airbnb rental would be in compliance with any local permitting and zoning requirements and is otherwise permissible, (ii) whether that proposed use might expose the bankruptcy estate to liabilities, (iii) whether there is adequate insurance for that use of the property, and (iv) whether the proposed sale of the property is consistent with any agreement with Airbnb.
Real estate agent.
The employment application (dkt. 26, p.4:1-4) states that Agent has agreed to disclose to Debtor [i.e., only to Debtor? how about disclosure to creditors, the US Trustee, and this Court?] any agency relationship Agent has with other parties ("Third Parties") that may be part of a real estate transaction for the sale of the Real Property [i.e., dual agency? that is prohibited by the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov)] as well as the amount of any compensation Agent receives from Agent's relationship with any Third Parties [i.e., splitting the commission with a cooperating agent from a different real estate agency? or something else?].
What does the quoted text mean? This Court's questions are set forth
2:00 PM
in the emphasized, bracketed text above.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: TBD
Plan/Disclosure Statement*: TBD
Continued status conference: 9/24/19 at 1:00 p.m., brief status report due 9/17/19.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
2:00 PM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 147
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED (see Orders granting relief to take all steps prior to foreclosure, dkt.173, 174)]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr
Movant(s):
WILMINGTON SAVINGS FUND Represented By
Joshua L Scheer
2:00 PM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 4
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
2:00 PM
Docket 83
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
2:00 PM
Docket 6
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
2:00 PM
Adv#: 2:18-01203 The Bird Nest, LLC et al v. Hollister
fr. 8/14/18, 12/18/18, 6/4/19, 11/26/19, 12/10/19
Docket 1
Tentative Ruling for 6/16/20:
Continue to 12/8/20 at 2:00 p.m. because this adversary proceeding is still stayed as set forth in the tentative ruling for 6/4/19 (reproduced below).
Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
Continue to 6/16/20 at 2:00 p.m. because this adversary proceeding is still stayed as set forth in the tentative ruling for 6/4/19 (reproduced below).
Appearances are not required on 12/10/19.
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/4/19:
Continue to 11/5/19 at 2:00 p.m. because, as set forth in the parties' stipulation (adv. dkt. 8) (approved by order at adv. dkt. 9), this adversary proceeding is stayed pursuant to the parties' settlement that is still being implemented in the bankruptcy case. Appearances are not required on 6/4/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/18/18:
Continue to 6/4/19 at 2:00 p.m. because, as set forth in the parties' stipulation (adv. dkt. 8) (approved by order at adv. dkt. 9), this adversary proceeding is stayed pursuant to the parties' settlement that is still being implemented in the bankruptcy case. Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Dana Hollister Represented By David A Tilem
Defendant(s):
Dana Hollister Pro Se
Plaintiff(s):
The Bird Nest, LLC Represented By Howard Steinberg
Roman Catholic Archbishop of Los Represented By
Howard Steinberg
The California Institute of the Sisters Represented By
Howard Steinberg
2:00 PM
Docket 1043
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1045
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1047
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1049
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1051
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1053
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1062
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1064
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1066
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1068
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1070
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1072
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1074
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1076
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1078
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1080
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1082
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1092
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1095
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1098
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1101
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1105
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1107
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1109
Please see the tentative ruling for the status conference (calendar no. 34, 6/16/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20
Docket 1
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
8:30 AM
Docket 34
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the Trustee should be prepared to address whether Debtor has provided the evidence requested in the Trustee's Comments Or Objection (dkt. 36). Debtor's declaration (dkt.41) does not include any draft escrow statement or other evidence.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Velvet Lynn Canez Represented By Daniel King
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 109
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: After the hearing this Court will prepare the order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Amando Huerta Represented By
Phillip Myer - SUSPENDED -
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Joint Debtor(s):
Ofelia Huerta Represented By
Phillip Myer - SUSPENDED -
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 38
The tentative ruling is to grant the motion, subject to any opposition at the hearing. Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rene Medina Represented By
Bruce A Boice
8:30 AM
Joint Debtor(s):
Maria Medina Represented By Bruce A Boice
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
For two reasons, the tentative ruling is to order mandatory mediation.
Usual reasons for mediation
The usual policy of Judge Bason is to order mandatory mediation, absent compelling arguments to the contrary. Mediation is relatively cheap and can achieve results that can be better than litigation.
For just one example of how mediation can be better, consider the issue of attorney fees. Debtor seeks attorney fees, and if she has any right to seek such fees then perhaps the claimant could assert a similar right, but (a) Debtor cites no statutory authority for any award of attorney fees, (b) if Debtor is relying on a contractual basis for attorney fees, that would appear to cut against her assertion that there is no written contract, (c) the document on which the claimant appears to rely as a contract does not appear to contain an attorney fee clause, and (4) even if attorney fees could be awarded to the prevailing party, there is no assurance that either party will prevail (their opponent could prevail, or this Court might determine that the outcome is mixed and that neither party has prevailed). In other words, litigation would involve many hurdles to either party obtaining an award of attorney fees, whereas in mediation any attorney fees are invariably far less and could be
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addressed briefly without having to clear all of those hurdles.
Reasons why mediation is particularly appropriate in this contested matter This Court has thoroughly reviewed the parties' extensive papers. This
Court notes a number of aspects of this dispute that have the potential to make any litigation particularly expensive - both in absolute terms and in comparison to the dollar amounts at issue.
For example, if this matter proceeds to trial, it will be necessary for the litigants to present a large amount of evidence (over 2,000 photographs and other pieces of evidence, according to Debtor, plus whatever additional evidence the claimant may add). It will take considerable time, effort, and expense for the litigants, their attorneys, and any expert witnesses to discover, review, organize, and present or object to such evidence in a persuasive manner.
The litigants' tasks are made more onerous by the fact that it is difficult to re-create an accurate picture of the conditions of property at various times in the past. That is even more difficult when subsequent work (repairs, enhancements, or other construction) may have obscured prior conditions, and when the available photographs might not fully convey the conditions. (This Court notes that the copies of photographs in the record are mostly blurry black and white photocopies that are impossible to view, although this Court presumes that better copies could be produced for trial.)
Conclusion
For all of the foregoing reasons, the tentative ruling is to order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge) and set a deadline of July 10, 2020 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will choose among them, or issue his own order).
Meanwhile, the tentative ruling is to continue this hearing to 8/27/20 at 8:30 a.m., with a deadline of 8/13/20 for the parties, if they have not been able to resolve their disputes through mediation, to lodge a proposed scheduling order (or, if they cannot agree on the schedule for this litigation, then they must lodge separate proposed orders). The scheduling order must
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set deadlines for:
completion of discovery;
exchange of experts' reports;
completion of discovery from experts (depositions etc.), if the parties propose a different deadline from the general discovery cutoff; and
lodging a proposed pretrial order (or, if they cannot agree on a joint form of pretrial order, then separate proposed orders).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
SHELLI D. CROSS Represented By Misty Wilks Martin S Kovalsky
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Appearances required on 6/25/20, but the tenative ruling is to continue this matter to 8/27/20 at 8:30 a.m. to address the following issues, with a deadline of 7/9/20 for the parties to lodge a proposed order for mandatory mediation, a deadline of 8/13/20 for Debtor to file and serve any supplemental papers, a deadline of 8/20/20 for Creditor to file and serve any supplemental response, and any reply permitted orally at the hearing.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Analysis:
Background
Debtor objects (dkt. 24) to Proof of Claim 1-1 filed by creditor IRBC3, LLC ("Creditor"). Creditor claims to be the holder of a loan secured by a second deed of trust on Debtor’s real property.
Debtor asserts that this junior loan was forgiven/discharged as part of a loan modification allegedly encompassing both the senior and junior loans. On June 11, 2020 Creditor timely filed its opposition (dkt. 32). Debtor’s reply was due 6/18/20, but as of the preparation of this tentative ruling none has been filed.
Discussion
Debtor makes two arguments for why Creditor’s claim should be
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disallowed. The tentative ruling is that Debtor's first argument is unpersuasive, and that the second argument requires further briefing and evidence before this Court can decide the issues presented.
Sufficiency of evidence supporting the proof of claim
Debtor’s first argument is that Creditor’s claim should be disallowed because the proof of claim is not supported by sufficient evidence. Dkt. 24, p.4:23. Creditor’s opposition argues that the proof of claim is supported by sufficient documentation, and alternatively Creditor cites authority that an objecting party must do more than point to a lack of compliance with Rule 3001 (Fed. R. Bankr. P.) in order to disallow a claim. Dkt. 32, p.2:10-24.
The tentative ruling is that Creditor has the better arguments on this issue. First, there is authority that insufficient documentation is not, by itself, a basis to disallow a claim. See In re Campbell, 336 B.R. 430, 436 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424, 437 (9th Cir. BAP 2005). Second,
even if it were, the tentative ruling is that Creditor's proof of claim contains sufficient documentation pursuant to Rule 3001(c) to constitute prima facie evidence of the validity and amount of Creditor’s claim pursuant to Rule 3001(f).
Promissory estoppel
Debtor’s second argument is that Creditor’s claim is barred by promissory estoppel. The elements of promissory estoppel under California law are:
a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting the estoppel must have been injured by his reliance. [Aceves v.
U.S. Bank, N.A, 120 Cal. Rptr. 3d 507, 514 (Cal. Ct. App. 2011) (internal citation and quotation omitted)]
Detrimental reliance requires a showing that the party has undertaken "a sufficient change of position in reliance" on the promise. Panaszewicz v. GMAC Mortg., LLC, 2013 WL 2252112 at *10 (N.D. Cal. 2013). Vague and
conclusory allegations are insufficient to plead reliance – a party must allege facts showing, for example, that they were induced to take some specific action, that they actually changed their position in reliance on the promise, or that some other course of action that could have been pursued would have been successful but was not pursued as a result of the promise. See id. at *
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13-14. See also, e.g., Griffin v. Green Tree Servicing, LLC, 166 F. Supp. 3d 1046-47 (C.D. Cal. 2015); Nguyen v. Pennymac Loan Servs., LLC, 2012 WL 6062742 at *22-23 (C.D. Cal. 2012).
Debtor argues that a loan modification by Creditor’s predecessor in interest ("IndyMac") encompassed not only IndyMac's senior loan but also its junior loan, now held by Creditor. Debtor states that, because she "performed under the [loan modification] agreement," Creditor’s claim should be disallowed. Dkt.24, p.1:24-25.
Debtor supports her argument with the following allegations. First, she asserts that she was "assured" by IndyMac's representatives that the loan modification covered both loans, and that they would both be "eligible for forgiveness." Id. at p.4:16-19. Second, she asserts that the principal dollar amount listed in the loan modification papers is consistent with both loans, not just the senior loan, being modified. Dkt. 24, p.3:6-8; 19-21. Third, Debtor asserts that Creditor’s predecessor in interest submitted two 1099-C Cancellation of Debt notices to the Internal Revenue Service ("IRS"), one for each loan. Id. at p.3:21-23. Fourth, Debtor asserts that she "was taxed" on the two 1099-C amounts, and she "performed under the [loan modification] agreement," so she "relied upon the representations of IndyMac regarding the modification of the two loans it serviced and therefore, Creditor is estopped from asserting its claim." Id., p.1:24-25 and pp.6-7.
Creditor makes two counter-arguments. First, Creditor argues that Debtor has failed to show detrimental reliance because she has not alleged any change in her position following the alleged oral promise that the junior loan would be forgiven. Dkt. 32, p.3:15-18. Creditor argues that Debtor claims in a "conclusory fashion" that she relied on Creditor’s predecessor in interest’s representations, which is insufficient to plead detrimental reliance under applicable case law. Id. at pp.3:18-4:13. Creditor also says that Debtor has failed to allege any facts or submit any evidence showing her position change. Id. at p.4:14-15.
Second, according to Creditor, most courts have held that issuance of a Form 1099-C does not create a triable issue of fact as to whether the subject debt has been cancelled or forgiven. Dkt.32 at p.4:21-24. Creditor notes that it is not aware of courts in the Ninth Circuit addressing the issue.
Debtor’s allegations re principal amount of modified loan
As noted above, Debtor asserts that the principal dollar amount listed in the loan modification papers is consistent with both loans, not just the
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senior loan, being modified. Dkt. 24, pp.3:6-21 and 4:16-19. But Debtor provides no evidence of each loan’s balance at the time of the loan modification, or any other evidence on this issue. The tentative ruling is that Debtor must provide such evidence if she wishes to rely on the principal dollar amount as evidence of a loan modification covering Creditor's claim.
Reliance
The tentative ruling is that Debtor has provided some evidence of reliance, but that this matter should be continued for additional evidence. Debtor states under penalty of perjury that she is "current" on her modified loan (dkt. 24, p.6:11-12) - i.e., that presumably she has paid thousands of dollars toward owning her home outright, that she could have used to purchase a different home or for other purposes if she had not been led to believe that the junior loan had been forgiven/discharged - and that she "was taxed on the two 1099-C reports" (id., p.7:3-4) - i.e., that she has paid taxes she would not have had to pay if she (and the tax authorities) had not been led to believe that the junior loan had been forgiven/discharged. These things, if proven, might be substantial evidence of detrimental reliance.
But Debtor has not provided documentary evidence to support these statements, such as a copy of the proof of claim of the senior lienholder or (appropriately redacted) bank statements showing that she is current on the modified loan(s) (or at least that she made substantial payments), and tax returns showing that she paid taxes on the dollar amounts of imputed income listed in the 1099-C notices. Nor has Debtor provided evidence that she would have pursued some other alternatives but for IndyMac's alleged promises, or that she changed her position based on such promises - e.g., evidence that if IndyMac had refused to enter into a loan modification then Debtor would have surrendered the property or filed an earlier bankruptcy petition or pursued some other course, and that such alternatives realistically can be projected to have placed her in a better financial position today than if Creditor's junior loan continues to encumber her property.
Effect of issuing Form 1099-C
Creditor relies most heavily on F.D.I.C. v. Cashion, 720 F.3d 169 (4th Cir. 2013), but the tentative ruling is that this case and some other cases cited by Creditor may be distinguishable because they hold only that issuance of a Form 1099-C alone does not create a triable issue of fact as to if the subject debt has been cancelled or forgiven. Dkt. 32, p.4:21-24. In this case there is more, as summarized above.
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Creditor also relies on two IRS Information Letters issued in 2005, but the tentative ruling is that those authorities, too, may be distinguishable. The letters by their own terms have no binding effect on the IRS, and it appears that they interpret a version of 26 C.F.R. § 1.6050P-1 which has since been amended in a manner that might be relevant (removing an event code "H" that arguably did not involve discharge of debt). This Court notes that the forms 1099-C in this case cite a different event code ("F"), although Debtor has not copied the reverse side of the forms or some other source that would provide a key to the event codes.
In addition, although the Court of Appeals for the Ninth Circuit has not addressed the issue, several District Courts in California have. The United States District Court for the Eastern District of California recognized the "split in authority as to the legal effect of issuing a 1099-C," and stated that "while there are decisions finding that the issuance of a Form 1099-C does not, alone, extinguish a debt, those cases were often narrowly decided under circumstances where no evidence other than the cancellation itself supported a discharge." Habtemariam v. Vida Cap. Group, LLC, 2017 WL 627404 at *3 (E.D. Cal. 2017) (emphasis added). See also, e.g., Kunwar v. Capital One, N.A., 2017 WL 5991864 at *4 (N.D. Cal. 2017). Cf. Amtrust Bank v. Fossett, 224 P.3d 935 (Ariz. Ct. App. 2009) (Creditor "may rebut" Debtor’s evidence "by showing that when it issued the form it did not intend to forgive the obligation").
In sum, the authorities of which this Court is aware do not appear uniformly to disregard Form 1099-Cs in determining whether debts have been discharged. The tentative ruling is that those forms, together with the other possible evidence noted above, are enough to create unresolved factual and legal issues about whether the junior loan was or was not forgiven/discharged.
Conclusion
The tentative ruling is to continue this matter to the date and time set forth at the beginning of this Tentative Ruling for the reasons set forth above, and meanwhile order mediation. The tentative ruling is that such mediation must be before one of the volunteer mediators (not a Bankruptcy Judge).
The parties are directed to use the time between now and the date when the mediation order must be lodged to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties
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cannot even agree on a mediator they may lodge separate orders and Judge Bason will choose among them, or issue his own order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dora Jane Bates Represented By Marcus Gomez
Trustee(s):
Kathy A Dockery (TR) Pro Se
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of Opportunity Fund Community Development [Proof Of Claim No. 1]
Docket 27
Deny as moot, in view of the withdrawal of the subject claim (dkt.30). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Richard Patrick Kennedy Represented By Giovanni Orantes
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 37
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kim Perdomo Represented By Caroline S Kim
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 115
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
The tentative ruling is to convert this case to chapter 7. Then a chapter 7 trustee can pursue recovery for the benefit of creditors based on Debtor's apparent equitable interest in the house that is the subject of this litigation.
This Court's order to show cause ("OSC," dkt.115) listed two alternative reasons for directing Debtor to show cause why this case should not be converted or dismissed with or without a bar of at least 108 days.
Debtor responded only to the second.
The two reasons in the OSC are:
[Debtor's] apparent attempt to effectuate a constructive or actual fraud on creditors, by settling for $-0- the bankruptcy estate’s valuable claim to an interest in the house, and (b) [Debtor's] failure to disclose her title to the house in her bankruptcy schedules. [OSC, dkt.115, p.2:2-16 (emphasis added).]
Debtor's response (dkt. 118) notes that, in fact, she did disclose her title to the house. Debtor is absolutely correct on this point: this Court made an error stating otherwise in the OSC. See dkt. 1, p.12; dkt. 118, p.2:4-9.
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Debtor's former husband, Mr. Jose Mejia (the "Ex"), points out that
what Debtor did not disclose was his asserted interest in the property (see dkt. 122, p.1, para. 2), and Debtor did not initially include him on her creditor matrix (see dkt. 1, pp.53-55). He is correct that these omissions potentially are more grounds for dismissing this case and imposing a bar (they are also potential additional grounds for conversion). But the OSC mistakenly did not direct Debtor to address those issues, and therefore the tentative ruling is that it would not be appropriate basis to dismiss this case (with or without a bar), or convert this case.
Nevertheless, the tentative ruling is that there is more than sufficient cause to convert (or dismiss this case with a bar) based on the evidence that Debtor attempted to effectuate (i) an actual fraud on creditors, and alternatively (ii) a constructive fraud on creditors, by proposing to settle for
$-0- the bankruptcy estate’s valuable claim to an interest in the house, while transferring such value to her family. The tentative ruling is that conversion is in the best interests of creditors because a chapter 7 trustee can seek to recover funds for the benefit of creditors based on the estate's apparently valuable claim to an interest in the subject house.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sandra Lisa Sandoval Represented By Raymond Perez
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 62
Debtor(s):
George Allen Jordan Represented By
Richard Mark Garber
Joint Debtor(s):
Audrey Carolyn Jordan Represented By
Richard Mark Garber
Movant(s):
George Allen Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Audrey Carolyn Jordan Represented By
Richard Mark Garber Richard Mark Garber Richard Mark Garber
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 4/30/20, 5/28/20
Docket 33
Tentative Ruling for 6/25/20:
At the hearing on 5/28/20 this Court took this matter under submission, by agreement of the parties, for a valuation decision based on the written record. This Court anticipates issuing a written decision prior to the this continued hearing. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC
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APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reason:
There is no tentative ruling but the parties should be prepared to address the following issues.
Settlement negotiations
In the stipulation continuing the initial hearing on Debtor's motion, the parties stated that they were exploring resolving the motion without the need for a hearing. Dkt. 37, p.2:10-14. The parties should be prepared to address the status of those efforts.
Value of the property
Debtor's motion relies on an appraisal as of 3/3/20 valuing the subject property at $390,000.00. See dkt. 33, p.3 & Ex. C. In its opposition, Real Time Resolutions, Inc.'s (as agent for the Bank of New York Mellon) ("Resolutions") argues that the motion should be denied because (i) Debtor's valuation of the property was not as of the petition date, (ii) the appraiser relied on a contractor's invoice from an unnamed contractor in reducing the value of his appraisal, and (iii) based on Resolutions' own appraisal the property is worth $455,000.00 as of the petition date. Dkt. 35, pp.2:26-3:24; dkt. 36. Debtor's reply (dkt. 42) argues that Resolutions' appraisal underestimates the cost of repairs needed on property ($20,000 v.
$131,925.00), and includes a declaration from a general contract to support Debtor's repair estimates (dkt. 43).
The tentative ruling is that Resolutions' first argument is not persuasive, at least without evidence that the difference in dates makes an actual difference in valuation. Judge Bason typically accepts valuations dated within 6 months before or after the petition date. Because the petition date is 12/7/19 and Debtor's appraisal is dated as of 3/3/20, the tentative ruling is that Debtor's appraisal is sufficiently close to the petition date.
As to the parties' other arguments, the parties should address how they propose to resolve their disputes re the value of the property and the
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cost of necessary repairs - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the Court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tracey P Nubia Represented By John M Boyko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 05/28/20
Docket 27
Deny, for the reasons set forth below. Appearances are not required.
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Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
The tentative ruling is to deny the motion because, contrary to Debtor's assertions in the text of the motion that there will be no net proceeds (dkt.27, p.2, para.4), the evidence before this Court suggests that there might be approximately $74,000 in net proceeds (see dkt.33, p.2, penultimate paragraph), and Debtor has failed to respond to this Court's order (id., last paragraph) directing Debtor to address that issue.
Debtor's counsel is cautioned in future (a) to provide a draft closing statement or other clear statement of the financial calculations and (b) not to misstate facts (as appears to have happened in this instance, by asserting that no net proceeds would remain).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
David Edward Falcon Represented By Dana M Douglas
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20, 3/26/20, 4/30/20
Docket 23
Tentative Ruling for 6/25/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the status of their mediation efforts (see dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/20:
Deny for lack of prosecution. Appearances are not required.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19
8:30 AM
Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Debtor failed to appear at the heaing on 3/26/20. Nevertheless this Court exercised its discretion to continue the hearing.
Debtor still has not filed any supplemental papers addressing the issues raised in the 1/23/20 Tentative Ruling, reproduced below, and Creditor's objection (dkt. 32). Therefore the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/20:
Deny, because the tentative ruling for 2/23/20, which was not contested and therefore was adopted as this Court's actual ruling, set a deadline of 3/12/20 for Debtor to address the issues in the opposition (dkt. 32), including an explanation of how the amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19, even though it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appearances are not required. If you wish to contest the tentative ruling you must arrange for a telephonic appearance. Pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice.
8:30 AM
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/23/20:
Continue to 3/26/20 at 8:30 a.m. with a deadline of 3/12/20 for the parties to file supplemental papers addressing the issues set forth in the filed objection (dkt.32). Appearances are not required on 1/23/20.
Reasons:
Service
The amended motion papers were not served until 1/7/20 (10 days before the hearing) (see dkt. 26), which is too little time before the hearing.
Evidence of senior debt
Debtor's amended motion (dkt. 29) alleges that the senior lender ("Bayview") is owed $662,095.02 as of 11/16/19 but it is unclear from the mortgage statement (dkt. 29, Ex. 2) how Debtor arrived at that total.
Appraisal; date of valuation
The junior lienholder has requested (dkt. 32) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose
8:30 AM
to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
(iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Blanca Estela Rubalcava Represented By Lionel E Giron
Movant(s):
Blanca Estela Rubalcava Represented By Lionel E Giron Lionel E Giron Lionel E Giron Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
(n) and (w) to modify plan or suspend plan payments fr. 2/27/20, 3/26/20
Docket 51
Tentative Ruling for 6/25/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter has been continued a number of times to give Debtor time to address the Chapter 13 Trustee's concerns (dkt. 52). There is no tentative ruling, but the parties should be prepared to update this Court on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice. Please
8:30 AM
contact CourtCall at (888) 882-6878 to make arrangements.
There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date at Debtor's request to allow time for him to address the Chapter 13 Trustee's concerns (dkt. 52). There is no tentative ruling, but the parties should be prepared to update this Court on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/27/20:
Appearances required. There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 52).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kip Scott Rolfe Represented By Thomas B Ure
8:30 AM
Movant(s):
Kip Scott Rolfe Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 52
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 57).
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Deidre Antoinette Green Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
DEUTSCHE BANK NATIONAL TRUST COMPANY
vs DETOR
Docket 36
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Timothy Raymond Oliva Represented By
Rabin J Pournazarian
Joint Debtor(s):
Donelle Marie Oliva Represented By
Rabin J Pournazarian
Movant(s):
DEUTSCHE BANK NATIONAL Represented By
Theron S Covey Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fidel Santiago Gama Sr. Represented By Matthew D. Resnik
Joint Debtor(s):
Yelba R Santiago Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEWREZ, LLC
vs DEBTOR
Docket 26
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
William Moises Martinez Represented By Erika Luna
Joint Debtor(s):
Maritza Del Pilar Martinez Represented By Erika Luna
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 33
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Dagoberto De Los Angeles Gutierrez Represented By
Lionel E Giron
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 46
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maura Mendoza Preciado Represented By Leonard Pena
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 47
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 49).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Carol Y Espina Represented By Jacqueline D Serrao
Movant(s):
Wells Fargo Bank, National Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 24
- NONE LISTED -
Debtor(s):
Francisco Ruiz Represented By Julie J Villalobos
Movant(s):
Deutsche Bank National Trust Represented By Kirsten Martinez Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] CITIBANK, N.A.
vs
DEBTOR
Docket 23
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
10:00 AM
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Hector M Covarrubias Pro Se
Movant(s):
Citibank, N.A. as Trustee for the Represented By
Katherine S Walker
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
WBL SPE III, LLC
vs DEBTOR
Docket 19
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
10:00 AM
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Chul Won Park Represented By Matthew D. Resnik
Joint Debtor(s):
Kyung Hae Park Represented By Matthew D. Resnik
Movant(s):
c/o Don J. Pool WBL SPE III, LLC Represented By
Don J Pool
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] US BANK TRUST NATIONAL ASSOC
vs
DEBTOR
Docket 14
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
10:00 AM
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lauren D. Golt Represented By Donald E Iwuchuku
Movant(s):
US Bank Trust National Association, Represented By
Lemuel Bryant Jaquez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NJR THREE PROPERTIES, LLC
vs DEBTOR
Docket 8
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
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analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse
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consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jannie T. Murillo Represented By Chirnese L Liverpool
Movant(s):
NJR Three Properties, LLC Represented By Martin W. Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PREMIER AMERICA CREDIT UNION
vs DEBTOR
Docket 15
- NONE LISTED -
Debtor(s):
Odilia Garcia Represented By
Jeffrey N Wishman
Movant(s):
Premier America Credit Union Represented By
Bruce P. Needleman
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CREDIT ACCEPTANCE CORPORATION
vs DEBTOR
Docket 34
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against
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property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6)
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Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors
weigh in favor of granting relief as set forth above. Most significantly, Credit Acceptance Corporation, the named loss payee (dkt.34, Ex.1, p.1), seeks to "recover only the insurance proceeds" re the vehicle (id. at p.10:16-17). The tentative ruling is that granting the requested relief by modifying and conditioning the automatic stay will result in complete resolution of the issues raised in this motion, and will not interfere with the bankruptcy case.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
ERICK LASHAWN CARPENTER Represented By
Alon Darvish
Joint Debtor(s):
LAKESHA MARSHAY Represented By Alon Darvish
Movant(s):
Credit Acceptance Corporation Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING INC.
vs DEBTOR
Docket 80
Debtor(s):
Nicole Leesuvat-Anderson Represented By Andrew Moher
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Tentative Ruling for 6/30/20 (same as for 5/19/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to finalize the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 4/7/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to finalize the terms of an adequate protection agreement. There is not tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/10/20:
Appearances required. This matter was continued to this date to allow time for the parties to review Debtor's payment history. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/4/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
10:00 AM
Trustee(s):
Josephine E Salmon
Kathy A Dockery (TR) Pro Se
10:00 AM
BANKUNITED N.A.
vs DEBTOR
Docket 49
Debtor(s):
Gina Marie Darden Represented By Steven A Alpert
Movant(s):
BankUnited N.A. Represented By Christopher Giacinto Diana Torres-Brito Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE MONEY SOURCE, INC.
vs DEBTOR
Docket 32
Debtor(s):
Dennis Ezell III Represented By Laleh Ensafi
Movant(s):
The Money Source, Inc. Represented By Mukta Suri Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 5/19/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/19/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Hernandez Contreras Represented By Juanita V Miller
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 37
- NONE LISTED -
Debtor(s):
Sarah VanDerBeets Represented By Kateryna Bilenka
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 281
Approve the Trustee's final report and allow the Trustee $16,256.36 in fees and $345.66 in expenses, for total award of $16,602.02. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Boardbrokers, Inc Represented By
11:00 AM
Trustee(s):
George J Paukert
Wesley H Avery (TR) Represented By Jeffrey L Sumpter M Douglas Flahaut Aram Ordubegian Matthew A Lesnick Debra E Cardarelli
11:00 AM
Docket 278
Approve Arent Fox LLP's request for $181,500.50 in fees and $3,187.15 in expenses, for a total award of $184,687.65, but only authorize payment of
$40,000 in fees and $3,817.15 in expenses, for a total payment of $43,187.15 pursuant to the Trustee's final report (dkt. 280, 281). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Boardbrokers, Inc Represented By George J Paukert
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey L Sumpter M Douglas Flahaut Aram Ordubegian Matthew A Lesnick Debra E Cardarelli
11:00 AM
Docket 277
Approve CBIZ Valuation Group LLC's request for $180,000.00 in fees and
$0.00 in expenses, but only authorize payment of $50,000 pursuant to the Trustee's final report (dkt. 280, 281). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Boardbrokers, Inc Represented By George J Paukert
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey L Sumpter M Douglas Flahaut Aram Ordubegian Matthew A Lesnick Debra E Cardarelli
11:00 AM
(B) Approving the Form and Manner of Notice and Bid Process
Docket 330
Grant as set forth below, subject to overbids at the hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): No opposition is on file
Analysis: The tentative ruling is to grant the sale motion and authorize a sale free and clear (11 U.S.C. 363(b) & (f)), subject to overbids.
In addition, the tentative ruling is to grant the request for a "good faith" finding (11 U.S.C. 363(m)) if Franck Zheng is the successful bidder and, alternatively, subject to the successful bidder or backup bidder filing declaration(s) providing sufficient evidence of such good faith (see the posted Procedures of Judge Bason, available at www.cacb.uscourts.gov).
The tentative ruling is also to grant the request to waive the 14-day stay provided by Rule 6004(h) (Fed. R. Bankr. P.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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fr. 6/16/20
Docket 310
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Trustee’s motion for issuance of order to show cause re contempt (dkt. 310, "Motion for OSC"), Debtors' opposition (dkt. 315), Order to show cause (dkt. 318, "OSC"), Debtors' opposition (dkt. 329), Trustee's reply (dkt. 334), Judgment of civil contempt, imposition of coercive sanctions, and scheduling order re compensatory sanctions (dkt. 336, "Contempt Judgment"), Trustee's declaration in support of compensatory sanctions (dkt. 337), Debtors' untimely supplemental opposition to OSC (dkt. 339), Trustee's supplemental reply to OSC (dkt. 340), Debtors' opposition re compensatory sanctions (dkt. 341)
On 6/16/20, this Court determined that the Trustee has demonstrated by clear and convincing evidence that Debtors willfully failed to comply with this Court's Turnover Order (dkt. 282) by failing to vacate the premises and remove all of their personal property. This Court also determined that Debtors failed to sufficiently rebut that evidence, and imposed coercive sanctions. See Contempt Judgment (dkt. 336).
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As for the Trustee's alternative ground for sanctions - Debtors' alleged
non-cooperation in the process of selling the Gladstone property - this Court noted that some of the Trustee's evidence was presented in his reply papers, so this Court continued the hearing to this day with a deadline for Debtors to file and serve any rebuttal evidence. This Court also continued the hearing to this date to determine the appropriate amount of compensatory sanctions.
Debtors' alleged non-cooperation with sale process
The tentative ruling is that the Trustee has submitted clear and convincing evidence of his alternative ground for sanctions: namely, that Debtors have willfully flouted this Court's Turnover Order by failing to cooperate with the Trustee, and to the contrary impeding the Trustee's efforts to sell the Gladstone Property. To cite one ground that is sufficient in itself to warrant sanctions, Debtors' supplemental evidence fails to rebut the Trustee's showing that the premises were maintained in a very unsightly condition.
Debtors' protestations that they have "never been cited by any Government Official" (e.g., dkt.339, p.4:20) sets the bar far too low.
In addition and in the alternative, there are numerous other matters on which Debtors' evidence fails to rebut the Trustee's clear and convincing evidence of impeding the Trustee's sale efforts. This Court's findings of fact and conclusions of law regarding Debtors' prior evidence apply equally with respect to their latest evidence:
Debtors' evidence shows only very belated attempts to pursue other housing; (ii) Debtors' evidence shows that they have pursued housing only of a type that they find suitable to the lifestyle they would like to maintain (as distinguished from cheaper housing, or moving in with their children, or exploration of any other alternatives); (iii) Debtors present no evidence of exploration of alternative means of obtaining even that more expensive housing, such as using the money that they are not spending (by living rent- free at the expense of the bankruptcy estate) to save for a large security deposit or prepaid rent; and (iv) Debtors have presented no evidence whatsoever of any attempts to arrange for the sale or storage or other disposition of their personal property in anticipation of actually moving out.
To the contrary, the evidence before this Court appears to show only minimal efforts to relocate – most of which occurred after the issuance of the OSC. This falls far short of the evidentiary showing
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Debtors are required to make to avoid a finding of contempt. See
e.g. FTC v. Affordable Media, 179 F.3d at 1241 (finding inability to comply with a court order is a defense, but the burden is on the contemnor to show "categorically and in detail" how compliance is "impossible"); United States v. Asay, 614 F.2d 655, 660 (9th Cir. 1980) (It is not enough to show "substantial," "diligent," or "good
faith" efforts to comply (as opposed to making all reasonable efforts to comply); Reno Air Racing Assn. Inc. v. McCord, 452 F.3d 1126, 1130 (9th Cir. 2006). [Judgement of Civil Contempt etc. (dkt.336), Ex.A, pp. 5:27-6:11]
Debtors still have not presented evidence, for example, of what they have done with the money they are not spending by living rent free at the expense of the bankruptcy estate at the Gladstone property. Similarly, Debtors' evidence of attempts to rent other properties consists of only a few communications regarding properties that it appears they cannot afford and do not qualify to rent. Debtors' other evidence is equally incomplete and unpersuasive.
For all of these reasons, the tentative ruling is that each and every one of the foregoing examples of Debtor's non-cooperation and impeding the Trustee's efforts to sell that Gladstone property are alternative and additional grounds on which the Trustee has established that this Court must hold Debtors in contempt. The tentative ruling is that the Trustee has established these alternative grounds for the existing coercive sanctions (dkt.336,
p.2:1-7), and for the compensatory sanctions set forth below.
Note: This Court concludes that, although the Trustee has presented substantial evidence that Debtors have impeded his efforts in even more ways, Debtors have presented contrary evidence that raises issues of credibility as to those specific ways. The tentative ruling is that it is neither necessary nor appropriate to determine issues of credibility without testimony in open court. Therefore, for example, this Court does not address the parties' disputes about whether the Trustee on one occasion mistook Mr.
Finnian Ebuehi's son for him.
Compensatory sanctions
"Civil contempt sanctions must be wholly remedial and serve . . . to compensate the complainant for losses resulting from the contemnor's past noncompliance." In re County Liberty, LLC, 370 B.R. 259, 274 (Bankr. C.D. Cal. 2007). "A compensatory fine must be limited to actual damages incurred
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as a result of the violation." Id. "Actual loss includes attorneys fees and costs incurred in securing compliance with the order." Id. (citing In re Dyer, 322 F.3d 1178, 1195 (9th Cir. 2003) (stating that "attorneys fees are an appropriate component of a civil contempt award")).
In support of the Trustee's request for compensatory sanctions, the Trustee submitted the Declaration of Ashleigh A. Danker (dkt. 337) and supporting billing entries reflecting $21,817 in fees and costs incurred from 4/7/20 (the effective date of the Turnover Order) through 6/16/20 (the initial OSC hearing). Id., Ex. 1. The Trustee also seeks an additional $4,025 for estimated fees and expenses incurred after 6/16/20 in connection with obtaining the Contempt Judgment and preparing and filing the supplemental briefing requested by this Court. Id., para. 2&6. Therefore, the Trustee seeks a total compensatory award of $25,842.
Debtors filed a timely opposition arguing that the requested fees are excessive because Debtors contend that the matters at issue are not complex and should not have been billed at Ms. Danker's rate of $505 per hour. Dkt.
341, pp.2:13-3:2. Debtors also take issue with the Trustee's current request for $25,842 in fees and expenses because the Turnover Motion only estimated approximately $5,000 in compensatory damages. Id., p.2:13-21. Accordingly, Debtors request that this Court only award compensatory sanctions of $5,000. Id., p.3:3-9.
Debtors' arguments are not well taken. This Court approved employment of Ms. Danker's firm, including her hourly rate, soon after this case was converted to chapter 7. Debtors were aware of Ms. Danker's hourly rate well before the Trustee sought turnover of the Gladstone Property and were on notice of the Trustee's request for compensatory damages to reimburse the estate for all attorneys' fees and expenses incurred to obtain Debtors' compliance with the Turnover Order. See Dkt. 310, Motion for OSC. The fact that the Trustee's request for compensatory damages is now higher than Debtors expected is directly traceable to Debtors' ongoing determination to flout this Court's Turnover Order, which forced the Trustee to expend substantial time and effort to try to obtain possession of the Gladstone Property. Even when the Trustee and this Court have, in effect, given Debtors a road map of the types of efforts they are required to undertake during the long course of these proceedings, Debtors have failed to undertake those efforts - e.g., they have failed to present evidence of any serious efforts to store or dispose of personal property and clean up the
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premises, or to find whatever alternative housing they can afford and qualify to rent or buy.
The tentative ruling is also that the Trustee's fees and expenses are reasonable, are directly attributable to Debtors' noncompliance with the Turnover Order, and are (less than) the actual amount of damages the estate has incurred trying to enforce the Turnover Order. Debtors have not cited any authority to persuade this Court that a $5,000 flat fee is appropriate, especially in light of Debtors' continued occupance of the Gladstone Property throughout these proceedings.
Proposed order: The Trustee is directed to lodge a proposed order or judgment via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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Docket 22
Tentative Ruling for 6/30/20:
Discharge the OSC based on this Court's review of Hyundai's status report (dkt. 34). Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Hyundai is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 2/18/20:
Appearances required by Hyundai. There is no tentative ruling. This Court has reviewed Hyundai's response (dkt.26) to this Court's "Order Directing Hyundai Capital America dba Kia Motors Finance to Appear and Show Cause Why This Court Should Not Impose Sanctions" (the "OSC," dkt. 22). The parties should be prepared to address the issues raised in the OSC and Hyundai's response.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Toya Emealda Johnson Pro Se
Trustee(s):
Carolyn A Dye (TR) Pro Se
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Docket 192
Tentative Ruling for 6/30/20:
Grant the motion and compel arbitration as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
Background
Debtor filed an objection (dkt. 172) to Proof of Claim 5-1 filed by creditor Pensco Trust Company ("Pensco") arguing that (x) the default interest rate on Pensco’s loan secured by a deed of trust on Debtor’s real property violates California usury laws and (y) Pensco charged Debtor an impermissible amount in late fees under California law, and therefore Pensco’s claim should be reduced. See dkt. 172, pp.4:16-6:6. Pensco filed its opposition (dkt. 186), which included a request to compel arbitration of this
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dispute based on the arbitration provision in the loan documents - but this Court's tentative ruling has been that a separate motion is required for any such relief. Pensco has subsequently filed and served a separate Motion To Compel Arbitration (dkt. 192), Debtor filed her opposition (dkt. 196), and Pensco filed its reply (dkt. 203).
Discussion
Debtor makes three arguments for why the Motion To Compel Arbitration should be denied. The tentative ruling is that all three of Debtor’s arguments are unpersuasive.
Whether the California Arbitration Act or Federal Arbitration Act applies is immaterial
California Code of Civil Procedure ("Cal. C.C.P.") § 1281 provides A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid,
enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract. [Cal. C.C.P. § 1281]
Similarly, 9 U.S.C. § 2 provides
A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract. [9 U.S.C. § 2]
Neither party has addressed whether the California Arbitration Act (Cal. C.C.P. § 1280 et seq.) or the Federal Arbitration Act (9 U.S.C. § 1 et seq.) applies. The tentative ruling is that the California act applies.
Alternatively, the tentative ruling is that neither party has established that anything in the Federal Arbitration Act would alters the outcome even if it were to apply, nor is this Court aware that it would alter the outcome, and any contrary arguments are waived and forfeited. See Maggio v. Windward Cap. Mgmt. Co., 96 Cal. Rptr. 2d 168, 171 n. 1 (Cal. Ct. App. 2000).
The tentative ruling is that the arbitration provision is enforceable
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"A written stipulation or other agreement to arbitrate a controversy is
subject to the general rules of contract enforcement and interpretation." Horath v. Hess, 170 Cal. Rptr. 3d 325, 329 (Cal. Ct. App. 2014). The California Supreme Court has stated that "the fundamental goal of contractual interpretation is to give effect to the mutual intention of the parties … If contractual language is clear and explicit, it governs." Id. (internal citation omitted). The arbitration provision need not reference the California Arbitration Act to be enforceable under California law. Garrido v. Air Liquide Indus. U.S. LP, 194 Cal. Rptr. 3d 297, 303 (Cal. Ct. App. 2015). The California Arbitration Act sets forth a "comprehensive statutory scheme regulating private arbitration in this state … through this detailed statutory scheme, the Legislature has expressed a strong public policy in favor of arbitration." In re Tobacco Cases I, 21 Cal. Rptr. 3d 875, 880 (Cal. Ct. App.
2004).
Pensco argues that the parties’ arbitration provision is enforceable.
Dkt. 192, p.7:2. The provision states:
In the event of any legal dispute, all parties agree to submit to the final decision of Arbitration which decision may be entered in any court of competent jurisdiction. [Dkt. 192, PDF p.16, para. 6]
Debtor argues that because "arbitration" is not defined, the arbitration provision is too vague and ambiguous to be enforceable. Dkt. 196, p.2:1-2. Pensco argues in its reply that Debtor provides no admissible evidence and cites no legal authority to support this position. Dkt. 203, p.2:17-18.
The tentative ruling is that Pensco has the better of the argument here.
First, Pensco is correct that Debtor cites no legal authority in support of this argument. Second, pursuant to the above cited legal authority, the tentative ruling is that the arbitration provision is "clear and explicit." Debtor does not allege that the intention of the parties was anything other than that legal disputes would be resolved via arbitration. To the extent that terms necessary to proceed with arbitration are not defined in the arbitration provision, the California Arbitration Act provides gap filler provisions such as Cal. C.C.P. § 1281.6, which addresses selection of arbitrators.
Therefore, the tentative ruling is that the arbitration provision is enforceable.
The tentative ruling is that the arbitration provision is applicable to the parties’ current dispute
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"To determine whether a contractual arbitration clause requires
arbitration of a particular controversy, the controversy is first identified and the issue is whether that controversy is within the scope of the contractual arbitration clause." In re Tobacco Cases I, 21 Cal. Rptr. 3d 875 at 882. In California, as under federal law, "doubts concerning the scope of arbitrable issues are to be resolved in favor of arbitration." Id. at 881. "When a dispute arises over the meaning of contract language, the first question to be decided is whether the language is reasonably susceptible to the interpretation urged by the party. If it is not, the case is over." Horath v. Hess, 170 Cal. Rptr. 3d 325 at 329 (internal citation and quotation omitted).
Pensco argues that Debtor’s objections to its claim "fall squarely under the arbitration provision." Dkt. 192, p.4:21. Debtor states that "it is unclear whether it [the arbitration provision] applies to the current dispute, a bankruptcy claim objection." Dkt. 196, p.2:2.
The tentative ruling is that Pensco has the better of the argument here.
The parties’ dispute is over whether Pensco’s claim should be reduced because certain provisions of the note are allegedly impermissible under California law. See dkt. 172, pp.4:16-6:6. The arbitration provision provides that "in the event of any legal dispute" the parties will resolve the dispute via arbitration. Dkt. 192, PDF p.16, para. 6 (emphasis added). The arbitration provision is very broad, and the tentative ruling is that the language is not "reasonably susceptible" to an interpretation that does not encompass the current dispute.
Therefore, the tentative ruling is that the arbitration provision is applicable to the parties’ current dispute.
The tentative ruling is that this Court does not have discretion to decline to enforce the arbitration provision
Allowing or disallowing a claim is a "core proceeding." 28 U.S.C.
§ 157(b)(2)(B). The Court of Appeals for the Ninth Circuit has held that
… even in a core proceeding, the McMahon standard [Shearson/Am. Express, Inc. v. McMahon, 482 U.S. 220, 226 (1987)] must be met – that is, a bankruptcy court has discretion to decline to enforce an otherwise applicable arbitration provision only if arbitration would conflict with the underlying purposes of the Bankruptcy Code. [In re Thorpe Insulation Co., 671 F.3d 1011, 1021 (9th Cir. 2012)]
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Purposes of the Bankruptcy Code include "having bankruptcy law
issues decided by bankruptcy courts; [] centralizing resolution of bankruptcy disputes; and [] protecting parties from piecemeal litigation." In re EPD Inv. Co., LLC, 821 F.3d 1146, 1150 (9th Cir. 2016). As set forth below, Debtor has not established that there would be any cognizable conflict with these or any other purposes of the Bankruptcy Code by enforcing the arbitration provision in this case.
Debtor relies on non-binding authority for the proposition that this Court has discretion to deny the request for arbitration. Dkt. 196, p.2:10-19. In its reply, Pensco argues that Debtor has failed to submit any admissible evidence or relevant authority establishing that the MacMahon standard has been met. Dkt. 203, p.2:24-25 and p.4:18-21. Pensco further argues that Debtor’s cited cases are factually distinguishable from the current case. Id. at p.3:2-4 and p.5:2-6.
The tentative ruling is that Pensco has the better of the argument here.
First, Pensco is correct that Debtor’s opposition does not address the MacMahon standard. Second, the tentative ruling is that arbitration of the parties’ dispute would not conflict with the underlying purposes of the Bankruptcy Code. While resolution of the claim objection is a bankruptcy law issue, the underlying arguments supporting the claim objection - whether the parties’ contract provisions are permissible under California law - is not. Nor is there any evidence that submission of this issue to arbitration would result in piecemeal litigation: it appears that arbitration can resolve all of the relevant issues.
For all of the foregoing reasons, the tentative ruling is that this Court does not have discretion to decline to enforce the arbitration provision.
Alternatively, the tentative ruling would be the same even if this Court had discretion
Even if this Court had discretion (which it does not) to decline to enforce the arbitration provision, the tentative ruling is that the most appropriate course is to enforce the arbitration provision. It was part of the parties' contractual bargain, and Debtor has not established anything unfair or improper about enforcing that provision. To the contrary, without in any way minimizing the importance of judicial fora, there are valid reasons to agree to arbitrate disputes, including typically lower costs and fewer avenues for protracted proceedings.
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Conclusion
For the reasons set forth above, the tentative ruling is to grant the Motion To Compel Arbitration.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
COPY of Tentative Ruling on Claim Objection, for 5/5/20:
Continue to 6/30/20 at 11:00 a.m. to address the following issues.
Appearances are not required on 5/5/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Background
Debtor filed her Objection to Claim to Pensco Trust Company's ("Pensco") POC 5-1 on 3/29/20 (the "Claim Objection," dkt. 172). Pensco filed its opposition on 4/21/20 (dkt. 186), which included within it a Counter Motion To Compel Dispute To Arbitration. Debtor filed her reply on 4/28/20.
Analysis
Counter Motion To Compel Dispute To Arbitration is not properly before this Court and must be separately noticed and filed
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As pointed out by Debtor in her reply (dkt. 186, p.4:22-25), the Counter Motion To Compel Dispute To Arbitration is not properly before this Court and will not be considered by this Court because any such motion should be separately noticed and filed.
Whether the parties' dispute should be sent to arbitration is a gating issue and this Court requires further briefing
The arbitration provision provides that "in the event of any legal dispute, all parties agree to submit to the final decision of Arbitration which decision may be entered in any court of competent jurisdiction." Dkt. 172, Ex. A, PDF p. 26, para. 6. But, although the term "Arbitration" is capitalized, there does not appear to be any definition of that term.
In the portion of its opposition that is properly before this Court, Pensco reserves its "claim that initial determination of the within dispute is subject to mandatory arbitration as agreed to by the parties in the loan documents." Dkt. 186, p.2:4-6 (emphasis added). In her reply, Debtor argues that the Court has jurisdiction over the Claim Objection because an objection to claim is a core proceeding per 28 U.S.C. Section 157(b)(2)(A), (B), and (O). Dkt. 191, p.4:26-28. Debtor also argues that the arbitration claim "is extremely vague and ambiguous, therefore unenforceable," explaining that "Arbitration" is not defined, Debtor's signature on the document that includes the arbitration provision is not dated, and that the rider to the promissory note which includes the arbitration provision is not listed as one of the loan documents in Ex. E to the opposition. Id. at pp.4:28-5:6. Lastly, Debtor cites In re Thorpe Insulation Co., 671 F.3d 1011, 1021 (9th Cir. 2012) for the proposition that resolution of a proof of claim involving a breach of contract subject to an arbitration clause is a core proceeding. Id. at p.5:7-10.
First, Debtor has not provided any citations to legal authority
establishing that her referenced issues with the arbitration provision and the document in which its included render the arbitration provision unenforceable. For example, there are other portions of the loan documents that include Debtor's signature that are not dated. See dkt. 172, PDF pp. 22, 30, 35, 45. Is Debtor arguing that the failure to date her signature renders the loan documents unenforceable? As another example, when Debtor says that the arbitration provision is "extremely vague and ambiguous," is she arguing that the arbirtration provision is unclear as to whether it applies to the current dispute, or that the actual terms of any arbitration are unclear?
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Second, while Debtor is correct that resolution of a proof of claim is a
core proceeding, that is not the end of the inquiry. In Thorpe, the United States Court of Appeals for the Ninth Circuit ("9th Circuit") held that
... even in a core proceeding, the McMahon standard must be met - that is, a bankruptcy court has discretion to decline to enforce an otherwise applicable arbitration provision only if arbitration would conflict with the underlying purposes of the Bankruptcy Code. [Thorpe, 671 F.3d 1011, 1021 (emphasis added)]
Debtor has not provided this Court with any briefing addressing the above referenced standard.
Third, this Court has reviewed the POC 5-1 and has not been able to locate where "Arbitration" is defined. Pensco has not provided this Court with any documentation defining "Arbitration," or otherwise outlining the terms of the parties' potential arbitration. Does Pensco have any such documents in its possession?
Conclusion
For the reasons set forth above, the tentative ruling is to continue the hearing on this matter to the date and time set forth at the start of this tentative ruling. Pensco is directed to file and serve a separate arbitration motion and supporting declaration(s) no later than 5/12/20. Debtor is directed to file and serve her opposition papers no later than 6/9/20. Pensco is directed to file its reply no later than 6/23/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
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Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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fr. 5/5/20
Docket 172
Tentative Ruling for 6/30/20:
Continue to 9/29/20 at 11:00 a.m., with a deadline of 9/15/20 to file a joint status report regarding the parties' arbitration (see cal. no. 6, 6/30/20 at 11:00 a.m.). Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[FOR PRIOR TENTATIVE RULING, see calendar no.6 (6/30/20 at 11:00 a.m.).]
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Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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fr. 5/5/20
Docket 170
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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fr. 5/5/20
Docket 171
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Movant(s):
Zeta Graff Represented By
Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19, 1/14/20, 02/18/20, 4/7/20
Docket 1
Tentative Ruling for 6/30/20:
Continue to 9/29/20 at 11:00 a.m., with a deadline of 9/15/20 to file a joint status report regarding the progress of the nonbankruptcy action.
Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
11:00 AM
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 75
Please see the tentative ruling for the status conference (Calendar no. 2, 6/30/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's motion for order determining value of collateral (dkt. 75), no opposition is on file
The tentative ruling is to grant the motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: file by 6/30/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S.
1:00 PM
Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 1:00 p.m. Brief written status report due 7/14/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 167
- NONE LISTED -
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 159
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (Calendar no. 4, 6/30/20 at 1:00 p.m.).
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
UST's motion to dismiss case (dkt. 135), Debtors' response (dkt. 147, "MTD") and Stark declaration in support (dkt. 150)
The UST should be prepared to address whether there are any remaining compliance deficiencies.
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154)
If this Court is persuaded not to grant the MTD, and if the COVID-19 situation has not changed Debtors' situation enough to warrant deferring any consideration of Debtors' current proposed plan, the tentative ruling is to proceed with Debtor's proposed Plan and Disclosure Statement. The tentative ruling is to direct Debtor to make minor corrections (deleting PDF pp. 9 &11 of the Plan, which are blank), and set a deadline of 4/28/20 to lodge a
1:00 PM
proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Amended Disclosure Statement and confirmation of the Amended Plan for the same time as the continued status conference (see below).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 6/30/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
1:00 PM
Anthony Obehi Egbase
1:00 PM
4/21/20
Docket 42
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154), Order setting combined hearing on (1) disclosure statement approval and (2) plan confirmation, and related deadlines (dkt. 159), proof of service of voting package (dkt 166), Mission's objection (dkt. 169), no reply or ballot summary is on file
The tentative ruling is to continue this matter concurrent with the continued status conference (section 2(d) below) and Debtors' second motion for order determining value of collateral (dkt. 172, 173), because the outcome of the that motion could affect whether Debtors' amended plan is confirmable. This Court anticipates setting revised deadlines for the submission of Debtors' reply in support of confirmation and a ballot summary at the continued hearing.
1:00 PM
(c) Outdated vehicle insurance policy
Debtors' May monthly operating report ("MOR") reflects that Debtors' vehicle insurance policy with Alliance United Insurance expired on 2/8/20 (dkt. 171, pdf p. 8). Debtors are directed to file an amended MOR by 7/7/20 with updated insurance coverage information.
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*:
Continued status conference: 8/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
1:00 PM
Current issues
UST's motion to dismiss case (dkt. 135), Debtors' response (dkt. 147, "MTD") and Stark declaration in support (dkt. 150)
The UST should be prepared to address whether there are any remaining compliance deficiencies.
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154)
If this Court is persuaded not to grant the MTD, and if the COVID-19 situation has not changed Debtors' situation enough to warrant deferring any consideration of Debtors' current proposed plan, the tentative ruling is to proceed with Debtor's proposed Plan and Disclosure Statement. The tentative ruling is to direct Debtor to make minor corrections (deleting PDF pp. 9 &11 of the Plan, which are blank), and set a deadline of 4/28/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Amended Disclosure Statement and confirmation of the Amended Plan for the same time as the continued status conference (see below).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 6/30/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
1:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 124
- NONE LISTED -
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 02/18/20, 03/31/20, 5/5/20
Docket 55
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (calendar no. 7, 6/30/20 at 1:00 p.m.)
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 10, 5/5/20 at 1:00 p.m.)
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the status conference (calendar no. 18, 3/31/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 9, 2/18/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20,
5/5/20
Docket 1
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's amended cash collateral motion (dkt. 55), opposition of Rehabbers Financial, Inc. dba Aztec Financial ("Aztec") (dkt. 70, 86 & 88), Debtor's reply (dkt. 90), and Debtor's supplemental declaration with appraisal (dkt. 129, 131)
This Court's ruling from the 5/5/20 hearing directed Debtor to lodge a proposed order granting this cash collateral motion on a further interim basis. As of the drafting of this tentative ruling, no such order has been lodged. The tentative ruling is to direct Debtor to lodge that proposed order no later than 7/2/20.
The parties' disputes regarding the use of cash collateral appear to have been effectively resolved by (i) this Court's order granting relief from the automatic stay (dkt.145), (ii) the terms on which Debtor previously has been permitted to use cash collateral (dkt. 80), and (iii) Debtor's hope to confirm a chapter 11 plan (see dkt. 138, 139, 150, 152). The tentative ruling is to approve the use of cash collateral on a final basis on the same terms as this
1:00 PM
Court's prior interim order (dkt.80), subject to Aztec's rights under the order granting relief from the automatic stay.
Proposed order: Debtor is directed to lodge both of the above- referenced orders (interim and final) via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: To be addressed concurrent with the continued status conference (see dkt.138, 139, 150, 152).
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 18
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (Calendar no. 9, 6/30/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 18, 19, 22, 31), Order shortening time (dkt. 16), order authorizing interim use of cash collateral (dkt. 25), no opposition is on file
At the hearing on 6/2/20 this Court directed Debtor to filed and serve notice of this final cash collateral hearing. As of the preparation of this tentative ruling, there is no proof of service reflecting service as directed.
Why not?
Budget motion (dkt. 33), no opposition is on file The tentative ruling is to grant the motion.
Proposed orders: Debtor is directed to lodge separate proposed orders via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
1:00 PM
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
Plan/Disclosure Statement*: file by 7/8/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/4/20 at 1:00 p.m.. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 18, 19, 22), Order shortening time (dkt.
1:00 PM
16)
The tentative ruling is to grant the motion on an interim basis subject to opposition at the hearing and the terms and conditions set forth in the tentative ruling for calendar no. 27, 6/2/20 at 1:00 p.m.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Untimely service of procedures order
Debtor's proof of service of the procedures order states that service was made on 5/27/20, which is more than "2 Court days after" the procedures order was entered on the docket on 5/22/20. Debtor is cautioned that failure to comply with orders of this Court in future may result in adverse consequences.
Local Form 2014-1
Per the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) any application to employ professionals (e.g., dkt.13) must be acompanied by Local Form 2014-1. Please see those Procedures for further information.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: To be set at continued status conference.
Procedures order: dkt.7 (served one day late, dkt. 14)
Plan/Disclosure Statement*: TBD
Continued status conference: 6/30/20 at 1:00 p.m., initial case status report due 6/14/20 (see Procedures Order).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
1:00 PM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 33
Please see the tentative ruling for the status conference (Calendar no. 9, 6/30/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19, 1/14/20, 02/18/20, 4/7/20
Docket 1
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 2/18/20, 4/21/20
Docket 5
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20
Docket 1
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20, 5/12/20
Docket 7
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 14, 6/30/20 at 1:00 p.m.).
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 14, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 26, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By
1:00 PM
Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
1:00 PM
Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which has been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). The tentative ruling is to continue this matter to the same date and time as the continued status conference (see calendar no.15, 6/30/20 at 1:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
1:00 PM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Continue to 6/30/20 at 1:00 p.m. to allow time for the parties to participate in a second round of mediation. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
1:00 PM
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC ("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows. Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
(1) a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal quotation omitted).]
These elements are satisfied: (1) the motion was timely - the proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so
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this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14) are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court,
(5) the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
Several of the Tucson factors weigh in favor of abstention. First, the Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the
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bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014)
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(authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
Defendant(s):
110 West Properties, LLC Pro Se
RU, LLC Pro Se
Dos Cabezas Properties, LLC Pro Se Criscione-Meyer Entitlement, LLC Pro Se Michael Criscione Pro Se
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
1:00 PM
Docket 5
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Missing Status Report
This Court's tentative ruling for 6/2/20 (see below, section 2(d)) directed Debtor to file a status report by 6/16/20. No party contested that tentative ruling, so it became this Court's final ruling. But as of the preparation of this tentative ruling, no status report is on file. Why not?
Missing Monthly Operating Reports ("MORs")
As of the preparation of this tentative ruling, Debtor has not filed an MOR for the months of April or May 2020. Why not? What remedies should this Court impose?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
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Continued status conference: 8/18/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 8/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron
1:00 PM
Docket 1
Tentative Ruling for 6/30/20:
Appearances required by counsel for the Debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's status report (dkt.134) appears to show sufficient compliance with her confirmed Plan. When does Debtor expect to file an application for a final decree?
Deadlines/dates
The tentative ruling is to set a continued post-confirmation status conference for 9/1/20 at 1:00 p.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
2:00 PM
Docket 121
- NONE LISTED -
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron
2:00 PM
Docket 31
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including Debtor's status report and related documents (dkt.142, 143, 139, 141), and has no issues to raise sua sponte.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD.
Continued status conference: 7/28/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 1
Tentative Ruling for 6/30/20:
Continue as set forth below based on this Court's review of the trustee's status report (dkt. 183). Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/14/20.
Bar date: 6/30/20 (dkt. 160; timely served, dkt. 161, 171).
Procedures order: dkt.5. (no proof of service)
Plan/Disclosure Statement*: TBD
Continued status conference: 10/6/20 at 1:00 p.m. Brief status report on due 9/22/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
2:00 PM
03/12/19, 3/26/19; 08/06/19, 11/5/19, 12/10/19,
3/10/20
Docket 0
Tentative Ruling for 6/30/20:
Continue this status conference to 9/29/20 at 2:00 p.m., with a brief status report due 9/22/20 based on Debtor's status report (dkt. 1534). Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
(1) Pending adversary proceeding (Cohen v. Cohen, 2:15-ap-01303-
NB)
This Court's records indicate that the last hearing in this adversary
proceeding was a status conference on 7/30/15, at which this adversary proceeding was resolved.
Proposed order: Debtor is directed to lodge an appropriate proposed order or judgment resolving the adversary proceeding via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young
2:00 PM
fr. 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20, 5/19/20
Docket 19
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (calendar no. 6, 6/30/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the status conference (calendar no. 9, 5/19/20 at 2:00 p.m.)
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (calendar no. 3, 5/5/20 at 2:00 p.m.)
Tentative Rulin for 4/7/20:
Please see the tentative ruling for the status conference (calendar no. 5, 4/7/20 at 2:00 p.m.)
Tentative Ruling for 3/3/20:
Please see the tentative ruling for the status conference (calendar no. 20, 3/3/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 23, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/28/20:
Please see the tentative ruling for the status conference (calendar no. 25,
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1/28/20 at 1:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the status conference (calendar no. 30, 12/17/19 at 1:00 p.m.).
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 13, 12/10/19 at 1:00 p.m.).
Tentative Ruling for 10/1/19:
Grant the motion (docket no. 19) on an interim basis, subject to the conditions set forth below, with a final hearing on 10/29/19 at 1:00 p.m., and a deadline of 10/3/19 for the movant to file and serve a notice of the final hearing provided that service on all persons with a potential interest in Debtor's cash must be served in strict compliance with Rule 7004 (Fed.R.Bankr.P.) - see the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov).
Appearances required.
As to the cash that allegedly is collateral of Beverly Partners, LLC, continue this hearing pursuant to its stipulation with the debtor (dkt.31) and this Court's order thereon. As to all properties/sources of cash, Debtor must segregate cash so that there is no commingling.
Judge Bason's standard conditions for use of cash collateral and/or postpetition financing (by creditors holding prepetition claims)
Written order
Form. Use local form
F2081-1.1.ORDER.CASH.COLLATERAL or the equivalent. Attach a copy of this tentative ruling as an exhibit, thereby adopting it as the written ruling of this Court, subject to any changes ordered at the hearing. Do not repeat the terms set forth in the motion or any stipulation. Incorporate those terms by reference (including the docket number of the document), subject to any modification by this Court.
Timing. Lodge the proposed order within 7 days after the hearing. See LBR 9021-1(b)(1)(B).
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Minimum adequate protection
In addition to the postpetition security interests that are automatically
provided pursuant to 11 U.S.C. 552 (e.g., in traceable proceeds and profits), and subject to any more comprehensive protection that may be included in the motion or related papers, Debtor shall provide at least the following protection to any creditor with a security interest in the subject property (pursuant to 11 U.S.C. 361-364, as applicable):
Insurance. For all collateral of a type that typically is insured (e.g., real property and improvements), Debtor is directed to maintain insurance in a dollar amount at least equal to Debtor’s good faith estimate of the value of such creditor's interest in the collateral, and such insurance shall name such creditor as an additional insured. Debtor is directed to remain current on payments for such insurance.
Taxes. Debtor is directed to remain current on payments on account of postpetition real estate taxes (to the extent that real estate is part of the collateral).
Disclosures/access. Debtor is directed to provide, upon such creditor's reasonable request, periodic accountings of the foregoing insurance and tax obligations and payments, as well as postpetition proceeds, products, offspring, or profits from the collateral, including gross revenues and expenses and a calculation of net revenues, including any rents and any fees, charges, accounts, or other payments for the use or occupancy of rooms and other public facilities in lodging properties (as all of the foregoing terms are used in 11 U.S.C. 552). Debtor is directed to provide appropriate documentation of those accountings, and access for purposes of inspection or appraisal.
Limitation on postpetition liens
In the event that the motion or related papers seek authority to grant postpetition liens to the creditor(s) with respect to prepetition debts any such liens shall be limited to the same validity, priority, and amount as prepetition liens. As used herein, the "validity, priority, and amount" or any similar phrase that may be used by the parties or this Court is deemed to include the following:
Extent. Such liens shall be limited to the type of collateral in which the creditor held a security interest as of the petition date, unless this order expressly states that the liens granted by this order are intended to
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attach to different types of collateral from the prepetition collateral. For example, if prepetition liens extended to inventory and accounts receivable but not equipment then postpetition liens are likewise limited (unless otherwise expressly provided by order of this Court). In addition, postpetition liens shall not extend to the proceeds of any avoidance actions, any recoveries under 11 U.S.C. 506(c), or any "carveout" under 11 U.S.C. 552.
Priority. Such liens shall be limited to the same priority as the security interest held by the creditor as of the petition date.
Dollar amount. Such liens shall be limited to the dollar amount needed to protect the creditor against diminution in the value of the secured claims as of the petition date.
Enforceability. Such liens shall be limited to the extent that the creditor's security interests were duly perfected and valid as of the petition date, and to the extent that they are unavoidable.
Automatic postpetition perfection. Any automatic perfection of such liens shall be subject to any applicable limitations regarding the Court's authority, jurisdiction, or due process.
Automatic disapproval of insufficiently disclosed provisions
Any provision of the type listed in FRBP 4001(c)(1)(B) or in local form F4001-2 (e.g., cross-collateralization) or any waiver of the "equities of the case" exception in 11 U.S.C. 552(b)(2) shall be deemed automatically disapproved and excepted from any order granting the motion, notwithstanding any other provision of such order, unless either: (a) such provision is specifically and prominently disclosed in the motion papers in a checklist (such as local form F4001-2), or alternatively (b) such provision is specifically identified in any proposed order granting the motion, using terminology of the type used in FRBP 4001(c)(1)(B) or local form F4001-2 (e.g., any "cross-collateralization" that is not specifically identified as such is deemed to be disapproved).
Disputes
In the event of any disputes regarding the rulings in this order, the parties are directed to meet and confer and, if they cannot resolve their disputes consensually, contact Judge Bason's chambers to arrange a mutually convenient time for either a telephonic or in-person hearing to address such disputes.
2:00 PM
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Movant(s):
Alex Christopher Padilla Represented By
Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan Eric Bensamochan
2:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20, 5/19/20
Docket 1
Tentative Ruling for 6/30/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
(a) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86, 101, 113, 141)
The tentative ruling is to modify the authority to use cash collateral generated by 10838-10842 Beverly Boulevard so as to restrict any authorization only to payment of real estate taxes, insurance, and other expenses necessary to maintain these properties, based on relief from the automatic stay being granted (dkt. 150).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
May Monthly Operating Report ("MOR," dkt. 153)
The MOR reflects that insurance premiums for the Audi are paid through 6/24/20. Debtor is directed to address whether continued insurance coverage has been purchased.
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Status Report (dkt.154)
Debtor is encouraged to keep status reports very brief. Judge Bason
prefers that status reports not repeat what is on the docket.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan*: 7/15/20. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
fr. 3/10/20, 5/19/20
Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 1136
Please see the tentative ruling for the status conference (calendar no. 9.1, 6/30/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20
Docket 1
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion For Entry Of An Order Approving Sale Of Assets Of Three Limited Liability Companies In Which The Debtor Owns Memberhsip Interests filed by Agent Dean Rallis (dkt. 1136)
Grant, subject to any persuasive opposition to the modified terms at the hearing (see part "(1)(b)" of this tentative ruling, below).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Motion For Order Approving Modification Of Conditional Settlement Agreement Between Debtor And Pierre Casanova filed by Debtor (dkt. 1175)
Grant, subject to an persuasive opposition at the hearing.
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Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 2:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1175
Please see the tentative ruling for the status conference (calendar no. 9.1, 6/30/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 65
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (Calendar no. 12, 6/30/20 at 2:00 p.m.).
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
2:00 PM
debtor in possession on insurance claims related to damage to her Bel Air Rd property
fr. 4/7/20, 4/21/20, 5/5/20, 6/16/20
Docket 167
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (Calendar no. 12, 6/30/20 at 2:00 p.m.).
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 6/16/20 at 2:00 p.m.).
Tentative Ruling for 5/5/20:
Please see the tentative ruling for the status conference (Calendar no. 8, 5/5/20 at 2:00 p.m.).
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (Calendar No. 31, 4/21/20 at 1:00 p.m.).
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 4/7/20 at 1:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
2:00 PM
4/21/20, 5/5/20, 6/16/20
Docket 1
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217), Debtor's supplement (dkt. 241)
There is no tentative ruling.
Debtor's disclosure statement (dkt. 253) and chapter 11 plan of
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reorganization ("Plan," dkt. 252), and objection of United States Trustee ("UST," dkt.264), Amended Schedules (dkt.232) and Amended MORs (dkt.247, 256, 261, 263, 265)
Debtor is racing against time to propose and obtain confirmation of a plan before her secured creditors can foreclose and/or before her tentative arrangements with creditors expire. As set forth in numerous tentative rulings posted since this inception of this case (which this Court will memorialize on the docket), Debtor frequently has been out of compliance with her obligations and this Court's directions. Her latest proposed Plan is a last- minute, desperate attempt to make this attempted reorganization work.
There is no tentative ruling regarding the proposed Plan and proposed disclosure statement. Debtor is directed to address the issues raised in the UST's objection including but not limited to issues regarding (i) her feasibility analysis, (ii) her historial income and expenses as reflected in her filed documents in this case, (iii) the adequacy of her disclosure of historical and projected revenues and expenses, and (iv) any "new value" issues.
If Debtor can make sufficient arguments and offers of proof to warrant the following relief, the tentative ruling is to set a deadline of 7/3/20 for Debtor to file, and serve only on the parties appearing at today's hearing, her supplemental/amended documents on the foregoing issues and a proposed order setting a combined hearing, concurrent with the continued status conference as set forth in part "(2)" below, on confirmation of a plan and final approval of a disclosure statement. Any such proposed order must be in the form posted on Judge Bason's portion of the Court's website, at www.cacb.uscourts.gov.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: See above.
Continued status conference: 7/28/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 33
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
Deutsche Bank National Trust Represented By Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
XCHANGE TITLING TRUST, LLC
vs DEBTOR
Docket 86
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
Movant(s):
XChange Titling Trust, LLC Represented By Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SUN RICH DEVELOPMENT I, LLC
vs DEBTOR
Docket 10
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 13). In addition, Debtor should be prepared to address the issues raised in Movant's reply (dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Sun Rich Development I, LLC Represented By David Brian Lally
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 9
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the motion papers (dkt. 9), the late-filed opposition papers (dkt. 18, 19, 20) filed by Norman Pomeranz and Tom Block (together, "Creditors"), and other filed documents.
The tentative ruling is that (1) the debtor apparently seeks to continue the automatic stay of 11 U.S.C. 362(a) as to all property, not just the debtor’s real property; (2) the burden is on the debtor to show good faith in filing the current bankruptcy petition; (3) there is a presumption that the debtor did not file this case in good faith, which can only be rebutted by clear and convincing evidence; and (4) the debtor has not adequately rebutted that presumption.
Proposed order: Creditors are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
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Background
The debtor seeks an order continuing the automatic stay in this case pursuant to 11 U.S.C. 362(c)(3). The motion (dkt. 9, p.3) only expressly references the real property and improvements at 8320 – 8350 La Tuna Canyon Road, Sun Valley, CA 91352 (the "Sun Valley Property"), although the debtor seeks to continue the stay as against all creditors (id., para. 1.e) regardless whether they have liens against that property. In any event, the motion focuses on two creditors in particular (apparently the holders of the first priority deed of trust against the Sun Valley Property): (1) Norman Pomeranz and (2) Tom Block (dkt. 9).
At the hearing the debtor is directed to clarify whether relief is sought as to all property of the estate. The tentative ruling is that any attempt to do otherwise would inappropriately discriminate among creditors.
For example, if the debtor seeks to stay acts against the Sun Valley Property but not stay garnishment of wages, that might create a race to seize those wages. Such an unrestricted race to seize assets could be disruptive to the orderly restructuring of the debtor’s finances that is at the heart of the Bankruptcy Code’s attempt to treat creditors equally and maximize creditors’ recoveries.
Accordingly, the tentative ruling is to interpret the ambiguous motion as a request to continue the automatic stay as against all property and creditors.
The automatic stay will terminate 30 days after the petition date unless this Court enters an order extending it
On November 25, 2019, the debtor filed a voluntary chapter 13 petition (1:19-bk-12954-VK) (the "Prior Case"). The Prior Case was dismissed on 6/10/20 based on debtor’s failure to make post-petition plan payments (id., dkt. 40). Six days later, on 6/16/20, the debtor filed this chapter 13 case.
Therefore, the automatic stay will terminate on 7/16/20 if this Court does not extend the stay, pursuant to 11 U.S.C. 362(c)(3):
if a single or joint case is filed by or against a debtor who is an individual in a case under chapter 7, 11, or 13, and if a single or joint case of the debtor was pending within the preceding 1- year period but was dismissed, other than a case refiled under a chapter other than chapter 7 after dismissal under section 707(b) –
the stay under subsection (a) with respect to any action
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taken with respect to a debt or property securing such debt or with respect to any lease shall terminate with
respect to the debtor on the 30th day after the filing of the later case;
on motion of a party in interest for continuation of the automatic stay and upon notice and a hearing, the court may extend the stay in particular cases as to any or all creditors (subject to such conditions or limitations as the court may then impose) after notice and a hearing completed before the expiration of the 30-day period only if the party in interest demonstrates that the filing of the later case is in good faith as to the creditors to be stayed. [Emphasis added.]
The following principles guide this Court’s application of 11 U.S.C. 362(c) to this case. First, there is authority that if the automatic stay is not continued beyond 30 days then it terminates in all aspects, i.e., not only as to the debtor individually but as to all parties and the bankruptcy estate. In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11- bk-53730-NB, docket #40 (Memorandum Decision).
Second, there is authority that "good faith" is a factual inquiry, although to the extent the statute defines what is good faith the interpretation of the statute is a legal question. See generally, e.g., In re Ellsworth, 455 B.R. 904, 914, 917 (9th Cir. BAP 2011) (holding that good and bad faith in other contexts are factual inquiries). Cf. U.S. Bank v. Village at Lakeridge, LLC, 138 S.Ct. 960 (2018) (analyzing what issues are factual and what are legal).
Third, the factual nature of "good faith" does not necessarily mean that live testimony is required. See, e.g., In re Nicholson, 435 B.R. 622, 635-36 (9th Cir. BAP 2010). In fact, the tentative ruling is that, just like hearings on whether to grant relief from the automatic stay, any hearing on whether to continue the automatic stay is intended to be an expedited, summary proceeding, not a full blown trial. See 11 U.S.C. 362(c)(3)(B) (30 day limit to conclude hearing), and compare 11 U.S.C. 362(d)&(e) (30 day limit to conclude hearing) and In re Johnson, 756 F.2d 738, 740 (9th Cir. 1995) (summary nature of proceedings on whether to grant relief from stay); In re Veal, 450 B.R. 897, 914-15 (9th Cir. BAP 2011) (same, requiring only "colorable" basis for standing to seek relief from stay).
Fourth, the "good faith" inquiry is narrowly focused on the filing of the
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petition. For example, debtors sometimes argue that because they have a genuine desire to retain a roof over their and their family's heads they are acting in good faith, but the question is not the genuineness of that motive. The question is whether the debtor had a sufficient basis to believe that the current bankruptcy case could be properly prosecuted notwithstanding the dismissal of one or more earlier bankruptcy cases. In a reorganization case, such as this one, the tentative ruling is that the test of good faith is analogous to a standard test of whether relief from the automatic stay is appropriate: when the petition was filed, did the debtor have a good faith basis to believe that there would be "a reasonable possibility of a successful reorganization within a reasonable time." United Savings Assn. v. Timbers of Inwood Forest, 484 U.S. 365, 376 (1988) (interpreting 11 U.S.C. 362(d)(2)) (citation and internal quotation marks omitted), and see 11 U.S.C. 362(d)(3)(A) (similar test in small business cases).
Fifth, a finding of good faith for the preliminary purpose of whether to continue the automatic stay under 11 U.S.C. 362(c)(3) is not necessarily determinative of good faith for any other purposes. See, e.g., 11 U.S.C.
1129(a)(3), and In re Abdelgadir, 455 B.R. 896, 900 (9th Cir. BAP 2011).
The tentative ruling is that this case presumptively was not filed in good faith, and that presumption is only rebuttable by clear and convincing evidence
The statute provides, in relevant part:
… a case is presumptively filed not in good faith (but such presumption may be rebutted by clear and convincing evidence to the contrary) – as to all creditors, if –
…
a previous case under any of chapters 7, 11, and 13 in which the individual was a debtor was dismissed within such 1-year period, after the debtor failed to –
(aa) file or amend the petition or other documents as required by this title or the court without substantial excuse (but mere inadvertence or negligence shall not be a substantial excuse unless the dismissal was caused by the negligence of the debtor’s attorney);
…
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there has not been [x] a substantial change in the financial or personal affairs of the debtor since the dismissal of the next most previous case under chapter 7, 11, or 13 or [y] any other reason to conclude that the later case will be concluded –
…
(bb) if a case under chapter 11 or 13, with a confirmed plan that will be fully performed. [11
U.S.C. 362(c)(3)(C) (emphasis added)]
Creditors argue (dkt. 18, p.4-5) that this case is presumptively not filed in good faith under 362(c)(3)(C)(i)(III)(bb), because the debtor has not shown a sufficient change in the debtor’s financial or personal affairs to conclude that the debtor will be able to propose a chapter 13 plan of reorganization that will be confirmed and fully performed.
The tentative ruling is that Creditors are correct. Therefore, the burden is on the debtor to show, by "clear and convincing" evidence, that he has filed this latest bankruptcy petition in good faith (whether he has done so is the topic of part "(4)" of this tentative ruling – this part "(3)" only addresses the presumptions and burdens of proof).
Insufficient evidence of a substantial change in circumstances, or other reason to believe that this case will conclude in a confirmed and fully performed plan
Flaws in debtor’s evidence of Crystal Clear Aquarium Service ("CCAS") income
The debtor’s declaration states that he "was unable to pay [his] May 2020 Chapter 13 Plan payments because COVID-19 dramatically reduced" his income from Crystal Clear Aquarium Service ("CCAS") (dkt. 9, Debtor Decl., para. 9), but that his "CCAS business has bounced back and [he is] earning more income than [he has] from January 2020 – May 2020" (id., para. 10). The debtor does not specify how much of an increase in income he saw in June 2020. Additionally, debtor’s Schedule I reflects $2,600 in net monthly income (dkt. 1, line 12), which is only slightly higher than the $2,386 figure provided in the Schedule I filed in the Prior Case (1:19-bk-12954-VK, dkt. 10, line 12). In addition, debtor has not followed the instructions to line 8.a which required him to attach a separate statement for each business showing gross receipts, ordinary and necessary expenses and net income, so it is not clear if the increase is attributable to CCAS or debtor’s second business (discussed
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below) and debtor has not filed a Declaration of Current/Postpetition Income and Expenses on local form F 3015.1.20.DEC.INCOME.EXPENSE, subsequent to commencing this case, to reflect the asserted surge in business.
Flaws in debtor’s evidence of Treasure Hollow Film Location ("THFL") income
The debtor’s declaration states that his THFL income was reduced by wildfires, mudflows, and a lack of financing to make the land useable again (dkt. 9, Debtor Decl. para. 9), but that he is currently renting a portion of the property out for $500/month (id. para. 8). As mentioned above, it is unclear whether this income is accounted for in his Schedule I because debtor did not follow the instructions to line 8.a. Furthermore, as Creditors highlight, debtor’s declaration fails to address whether he has adequate insurance in place to insulate himself from potential liability resulting from leasing the property out while COVID19 cases persist (dkt. 18, p.5:1-7).
Unexplained discrepancies between Schedules I and J As Creditors highlight, debtor’s declaration does not provide any
explanation for the discrepancies between Schedule I and J filed in this case and the Prior Case. Debtor’s Schedule I in this case identifies $1,557 in gross monthly expenses (dkt. 1, line 22c) and $1,043 in net monthly income (id., line 23c), whereas debtor’s Schedule I filed in the Prior Case identifies
$2,365 in gross monthly expenses and $21 in net monthly income (1:19- bk-12954-VK, dkt. 10, lines 23b and 23c). Debtor does not adequately
account for the alleged $1,022 change in net monthly income in the relatively short period of time between filing the Prior Case and filing this case.
Insufficient evidence of a likelihood of bifurcating Creditors’
lien
As for Debtor’s reasons to believe that this case will result in a
confirmed and fully performed plan, Debtor states that he intends to file a motion to value the Sun Valley Property, which will make his chapter 13 plan feasible and confirmable (dkt. 9, Debtor Decl. para.11-13). Although Debtor’s declaration is some evidence that the Sun Valley Property is worth $50,000 (because Debtor, as the owner of the Sun Valley Property, is competent to testify as his opinion of value), this evidence is significantly undercut by the fact that Debtor’s Schedule A, filed 12/9/19 in the Prior Case (1:19-bk-12954- VK, dkt. 10), values the same property at $464,000. Debtor’s declaration provides no explanation for this extreme drop in value. For example, Debtor
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does not assert that he had the Sun Valley Property appraised since he filed his schedules in the Prior Case. Debtor's declaration (dkt.25) refers to mud slides in 2018, so his Prior Case in 2019 should have already taken into account any decrease in value from the mud slides. On the present record it appears that Debtor may have simply picked a figure lower than Creditors’ asserted claim, in an attempt to buy himself more time under the protection of the automatic stay and to thwart Creditors’ foreclosure sale scheduled for 7/7/20 (the same date as this hearing).
Furthermore, Creditors have presented a competing valuation from a licensed real estate appraiser that values the Sun Valley Property at
$700,000, which further calls into question the accuracy and reliability of Debtor’s valuation.
Whether Debtor has rebutted the presumption of lack of good faith by "clear and convincing" evidence
The tentative ruling is that, in view of the deficiencies noted above, Debtor has not met his burden to show that when he filed this case he had a sufficient basis for a good faith belief that this case is likely to result in a "confirmed plan that will be fully performed" within the meaning of 11 U.S.C. 362(c)(3)(C)(i)(III)(b), nor has he met his burden to rebut the other evidence and presumptions of a lack of good faith.
Conclusion
The tentative ruling is that there is a presumption that Debtor has not filed this case in good faith for two alternative factual grounds: first, he has not presented enough evidence of a change in his income; and second, he has not presented enough evidence to support his valuation of the Sun Valley Property to believe in good faith, as of the petition date, that this case has a reasonable possibility of resulting in a confirmed and fully performed plan.
The tentative ruling is also that the burden is on Debtor to rebut this presumption by clear and convincing evidence and Debtor has not met that burden. For all of these reasons, the tentative ruling is to deny Debtor's motion as to all creditors.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Frank Larrybuck Buchanan Represented By Donald E Iwuchuku
Movant(s):
Frank Larrybuck Buchanan Represented By Donald E Iwuchuku Donald E Iwuchuku Donald E Iwuchuku
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 15
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
The tentative ruling is that Debtor's belated declaration (dkt.25) adequately addresses the venue-shopping concerns raised in this Court's "Order Directing Debtor to Appear and Show Cause Whether This Court Should Take Any Action Based on Apparently Inconsistent Addresses for Debtor" (dkt. 15). Nevertheless, the parties are directed to address whether this case, if it is not dismissed or converted, should be transferred to Judge Kaufman in view of her familiarity with Debtor.
This Court will prepare an appropriate order after the hearing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Frank Larrybuck Buchanan Represented By Donald E Iwuchuku
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SPECIALILZED LOAN SERVICING LLC
vs DEBTOR
Docket 44
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current (b) whether they will agree to the terms of an adequate protection order and/or (c) whether Movant will consent to a 30 day continuance (see the debtor's response, dkt. 47).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Movant(s):
Specialized Loan Servicing LLC Represented By
Mukta Suri
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
NEWREZ LLC
vs DEBTOR
Docket 74
Debtor(s):
Gabriel S Fernando Represented By Julie J Villalobos
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Application for fees and expenses [Sam S. Leslie, Ch. 7 Trustee]
Docket 39
Approve the Chapter 7 Trustee's final report, and allow the Chapter 7 Trustee
$2,684.99 in fees. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christine R Aull Represented By
11:00 AM
Trustee(s):
Christie Cronenweth
Sam S Leslie (TR) Pro Se
11:00 AM
Docket 37
Allow LEA Accountancy, LLP $2,552.00 in fees and $153.38 in expenses, for a total of $2,705.38. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christine R Aull Represented By
11:00 AM
Trustee(s):
Christie Cronenweth
Sam S Leslie (TR) Pro Se
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 02/18/20, 4/21/20, 6/2/20
Docket 5
Tentative Ruling for 7/7/20:
Please see the tentative ruling for the status conference (calendar no. 2, 7/7/20 at 1:00 p.m.)
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 18, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
1:00 PM
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20
Docket 1
Tentative Ruling for 7/7/20:
Continue as set forth below. Appearances are not required on 7/7/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 5, as supplemented, dkt. 288), and East West Bank non-opposition (dkt. 289)
Grant on a further interim basis, on the same terms and conditions as previously ordered (dkt. 286), except for the revised budget (dkt. 288, Ex.A), and authorize the payment of previously-allowed professional fees as set forth therein, with such authorization to use cash collateral extending through the conclusion of a continued hearing concurrent with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
1:00 PM
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of
such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
2:00 PM
Docket 0
Grant as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: The Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Current issues
Alleged employees’ motion for issuance of OSC re contempt (dkt. 95, "Motion for OSC"), Law offices of Lynn Chao, APC ("Chao") and Debtor’s opposition papers (dkt. 106, 107, 108), Alleged employees’ reply (dkt. 111), Order setting hearing on Motion for OSC (dkt. 128), Alleged employees’ supplemental papers (dkt. 131, 132, 133), Ms. Chao/Debtor’s supplemental opposition papers (dkt. 136, 137), Alleged employees’ supplemental reply papers (dkt. 138, 139, 140)
The tentative ruling is to overrule Ms. Chao/Debtor’s evidentiary objections on all of the grounds asserted by the Alleged Employees, grant the Motion for OSC and, for the reasons stated in the Alleged Employees’ papers, issue an order to show cause ("OSC") directing Ms. Chao, Mr. Polis,
2:00 PM
Ms. Wang and debtor (collectively, the "Responding Parties") to appear and show cause why this Court should not find them in contempt and impose compensatory and coercive sanctions, including coercive sanctions in a daily amount for each day from the date of this hearing that they fail to produce the requested discovery.
The Alleged Employees have made a sufficient showing to warrant issuance of an OSC
The Alleged Employees request the issuance of an OSC re contempt and sanctions against the Responding Parties for their alleged failure to comply with this Court’s 2004 Orders (dkt. 25, 30). For example, the Alleged Employees’ contend that Ms. Fang (aka Freda) Wang appeared for examination on 1/30/20 as debtor’s designated "person most knowledgeable" but Ms. Wang was not prepared to address several of the Alleged Employees’ topics of questioning (dkt. 95, p.9:9-12:8), including a line of questioning about the alleged misuse of her signature stamp. Id.,
p.12-17-13:6.
In response to the Motion for OSC, the Responding Parties admit that Ms. Wang was not prepared to speak to that issue and argue that the stamp was used after she resigned and without her knowledge. Dkt. 106, p.9:4-10. But the Responding Parties have not cited any authority to persuade this Court that, even if Ms. Wang’s testimony is true, she would be excused from taking steps prior to the examination to inform herself about the circumstances surrounding the use of her signature stamp or obtain information about how to contact the employees who allegedly used her stamp without her knowledge.
Similarly, Mr. Polis has failed to explain satisfactorily his instructions to Ms. Wang not to answer questions on attorney client privilege grounds, despite his knowledge that the Chapter 7 Trustee had already waived that privilege. And Ms. Chao has failed to satisfactorily explain all efforts undertaken to produce responsive documents (dkt. 95, p.16:19-18:7) or confirm that she had complied in good faith with the Alleged Employees’ document requests.
Therefore, the tentative ruling is that there is more than sufficient cause to issue the OSC to address what coercive and compensatory sanctions this Court should impose for the Respondents' failure to comply with this Court's discovery orders without a sufficient showing of any
2:00 PM
legitimate inability to do so.
The requested discovery is pertinent to the administration of debtor’s estate
The Responding Parties object yet again that this Court is permitting discovery to go forward even though there is similar discovery taking place in connection with the pending State Court litigation. If this is intended as a request to reconsider this Court's discovery orders, it is neither procedurally proper nor persuasive. If, instead, it is intended as an excuse for not complying with this Court's discovery orders, it fails to meet the standards for showing that compliance was impossible and, again, it is not persuasive.
This Court has previously explained why it is appropriate for discovery to continue in this form - including that Respondents' argument has been waived and forfeited because it was not raised until after the Alleged Employees had expended significant time and resources pursuing this information. In addition, this Court points out that requested discovery is very much relevant to bankruptcy-specific issues that could not be asserted in State Court.
For example, the discovery is relevant to assessing whether there are grounds to bring a motion for substantive consolidation of Debtor and the entities to which Debtor allegedly transferred funds or other assets. The discovery is also relevant to assessing whether there are grounds to pursue avoidance actions that might only be available in this bankruptcy case (the filing of which may have preserved actions that were available as of the commencement of this case, and as to which applicable statutes of limitation could apply but for statutory or equitable bankruptcy tolling principles). The discovery is also relevant precisely because the scope of discovery under Rule 2004 (Fed. R. Bankr. P.) is intentionally very broad (it has been described as a legitimate "fishing expedition"), because when a debtor in bankruptcy asserts that it lacks the ability to pay its creditors, it is appropriate to conduct a broad reaching examination of its "acts, conduct, or property" and its "liabilities and financial condition" and any other "matter which may affect the administration of the debtor's estate ...." Rule 2004(b).
No hearing at this stage
The tentative ruling is to excuse appearances at today's hearing because the issue presently before this Court is only whether to issue the
2:00 PM
OSC. The tentative ruling is that the Alleged Employees have provided more than enough grounds to issue the OSC, and the OSC itself will provide all parties with an opportunity to file briefs regarding (i) whether compensatory and coercive sanctions are appropriate for the Respondents' non-compliance with this Court's discovery orders, (ii) from what date, (iii) in what dollar amounts, and (iv) with what schedule and procedures for briefs and an evidentiary hearing on those issues.
The parties are directed to meet and confer regarding the proposed form of such OSC. As set forth at the start of this tentative ruling, the Alleged Employees must lodge their proposed form of order within seven days of this hearing date. In addition, as stated in the posted Procedures of Judge Bason (available at www.cacb.uscourts.gov), Judge Bason typically does not hold orders for any set period of time before issuing them so, if there is any disagreement regarding the form or substance of a proposed order, parties are directed to contact chambers and lodge an alternative proposed order as soon as possible.
The parties are advised that a "Sanctions Table" is posted on this Court's website, under Judge Bason' portion of that website, as a research tool for all parties in matters before this Court. As noted on that Sanctions Table, it is only a starting point for research, and all parties must Shepardize any cited authorities and otherwise satisfy their research obligations.
Future proceedings
Discovery
The tentative ruling is that, in view of ongoing health concerns arising from COVID-19, the parties are directed to meet and confer to discuss their availability for continued oral examinations via video within the next two weeks and then contact Chambers with their available dates. The tentative ruling is that Judge Bason will attend any such examinations via audio or video technology, and will rule on any objections as they arise. The tentative ruling is to use Zoomgov, because it is more secure than regular Zoom, and can be initiated by this Court and recorded on this Court's audio recording system which may be useful for future factfinding and rulings.
The tentative ruling is that once the parties have tentatively arranged for the dates of the examinations, they are directed to contact chambers to verify the availability of Judge Bason on each date. Once the dates are finalized, Judge Bason will email Zoomgov invitation links for each of the
2:00 PM
dates to the Alleged Employees’ counsel, who will then be instructed to circulate the link with participating parties.
The parties are also directed to meet and confer regarding agreeable dates, in advance of the oral examinations, for a supplemental document production. Those dates must be sufficiently far in advance of the oral examinations to provide the Alleged Employees' counsel with adequate time to review the documents and prepare questions based on those documents.
Scheduling the OSC evidentiary hearing
The parties are directed to meet and confer to discuss an agreeable day, that does not conflict with Judge Bason's posted hearing dates, for this Court to conduct an evidentiary hearing on the OSC via Zoomgov during or approximately on the dates of 8/17/20 through 8/21/20. The tentative ruling is to conduct that hearing starting at 9:00 a.m. on Wednesday 8/19/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
1:00 PM
Docket 14
Deny for the reasons set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: This Court will prepare the order.
Reasons for denial:
Lack of timely service
On 7/6/20, Debtor contacted Judge Bason's Chambers via telephone call, which this Court construed as an oral request for an emergency hearing pursuant to Local Bankruptcy Rule 9075-1(a) on whether to continue the automatic stay under 11 U.S.C. 362(c)(3).
Judge Bason's law clerk verbally instructed Debtor that her oral request was granted, provided that she file and serve the motion papers on all creditors via first-class U.S. mail by no later than 7/7/20. Debtor represented to Judge Bason's law clerk that she understood the oral instructions and would file and serve the motion on the morning of 7/7/20. This Court memorialized that oral ruling in its "Oder Granting Telephonic Request and Setting Hearing on Shortened Notice" (dkt. 18, the "OST").
1:00 PM
On 7/8/20, Debtor filed her motion (dkt. 20), proof of service (dkt. 21)
and supporting declaration (dkt. 22). Debtor's proof of service reflects that service was not made until 7/8/20 - one day after this Court's service deadline. Debtor's motion papers do not provide any explanation for her late filings or why this Court should excuse such noncompliance.
Due process
The applicable rules provide that service via U.S. mail is presumed to take three days. See Rule 9006(f) (Fed. R. Bankr. P.). If Debtor had mailed her papers on the date directed by this Court (7/7/20), creditors presumably would have received those papers by Friday 7/10/20. Instead, they cannot be presumed to have received those papers until sometime on the day of the hearing, Monday 7/13/20 - perhaps even after the hearing.
Therefore, the tentative ruling is that it would violate due process to grant the motion.
For the foregoing reasons, the tentative ruling is to deny the motion as untimely.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Marlene Aybar Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
1:00 PM
Docket 14
Please see the tentative ruling for the status conference (Calendar no. 3, 7/13/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash management motion (dkt. 14), order setting hearing on shortened time (dkt. 13)
There is no tentative ruling.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: TBD
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/28/20 at 1:00 p.m., status report due 7/14/20 on form(s) required by the Procedures Order. As stated in the Procedures Order, Debtor is required to personally appear (telephonically) at the status conference.
*Warning: special procedures apply (see order setting initial status
1:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 169
Grant in part and continue in part as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
10:00 AM
for lack of sufficient cause shown.
Co-debtor stay
The tentative ruling is to continue the hearing on this motion to 7/28/20 at 10:00 a.m., with repect to Movant's request to terminate the co-debtor stay under 11 U.S.C. 1301(c) based on lack of service on the co-debtor, Edmund Lincoln Anderson, who has a separate chapter 11 case pending before Judge Bason [2:20-bk-113330NB]. The tentative ruling is to direct Movant to serve notice of that hearing, the motion papers, and a copy of this tentative ruling on Mr. Anderson via U.S. mail no later than 7/15/20.
Note: The foregoing relief pertains only to the automatic stay in this case, not to the automatic stay in Mr. Anderson's case. Any relief in that case will have to be sought by a motion duly filed and served in that case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eva Anderson Represented By
Edmond Richard McGuire
Movant(s):
Wells Fargo Bank , N.A. Represented By Keith Labell Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 28
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Wende J. Brown Represented By
D Justin Harelik
Movant(s):
Wilmington Savings Fund Society, Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SAND CANYON HOMEOWNERS ASSOC
vs DEBTOR
Docket 69
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 71 & 72).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Tracie V. Kimbrough Represented By Steven A Alpert
Movant(s):
Sand Canyon Homeowners Represented By Debra L Sheppard
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 38
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Malcolm E. Williams Represented By Donny A Ekine
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BMW BANK OF NORTH AMERICA
vs DEBTOR
Docket 51
Grant as set forth below, based on the motion papers and Debtor's response regarding surrender of the vehicle (dkt.53). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
10:00 AM
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Movant(s):
BMW Bank of North America Represented By Marjorie M Johnson
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 34
Debtor(s):
Rachel Cervantes Carrillo Represented By Axel H Richter
Movant(s):
Deutsche Bank National Trust Represented By Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST NATIONAL ASSOC vs
DEBTOR
Docket 22
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Daniel Chang Represented By Jonathan J. Lo
Movant(s):
U.S. Bank Trust National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WESTLAKE FINANCIAL SERVICES
vs DEBTOR
Docket 249
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr
Movant(s):
Westlake Financial Services Represented By Marjorie M Johnson
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
10:00 AM
stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bela Janos Cseh Represented By Donna R Dishbak
Movant(s):
Bela Janos Cseh Represented By Donna R Dishbak Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 78
Tentative Ruling for 7/14/20 (same as for 5/19/20 except for CourtCall deadline in brackets):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [8/31/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 82).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association Represented By Matthew R. Clark III Sean C Ferry
April Harriott Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORPORATION
vs DEBTOR
Docket 41
Debtor(s):
Cesar Navar Represented By
Jaime A Cuevas Jr.
Movant(s):
American Honda Finance Represented By Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 40
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection stipulation. There is no tentative ruling, but the parties should be prepared to update this Court on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 5/19/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kenya B. Simmons Represented By Barry E Borowitz
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 42
Tentative Ruling for 7/14/20:
Continue this hearing to 10/27/20 at 10:00 a.m., in view of the three month forebearance arrangement (see dkt. 61). Appearances are not required on 7/14/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/19/20 (same as for 4/21/20):
10:00 AM
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order, and/or (c) whether they will agree to a forebearance agreement (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rafael Macias Represented By Kevin T Simon
Joint Debtor(s):
Silvia Jauregui Represented By Kevin T Simon
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BAYVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 44
Debtor(s):
Merita F. Fulmore Represented By
James D. Hornbuckle
Movant(s):
Bayview Loan Servicing, LLC., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, N.A. vs
DEBTOR
Docket 46
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/30/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 6/30/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maura Mendoza Preciado Represented By Leonard Pena
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01115 JPJ, LLC v. Burga et al
Docket 1
- NONE LISTED -
Debtor(s):
Percy Burga Represented By
Clifford Bordeaux
Defendant(s):
Percy Burga Pro Se
Dana Lynn Geisler Pro Se
Joint Debtor(s):
Dana Lynn Geisler Represented By Clifford Bordeaux
Plaintiff(s):
JPJ, LLC Represented By
Jason Wallach
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:19-01192 Mesnick v. Witke et al
Docket 1
Debtor(s):
Bret Russell Witke Represented By
Michael H Raichelson
Defendant(s):
Bret Russell Witke Represented By
Michael H Raichelson
Bret Russell Witke Design Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Michael Mesnick Represented By Craig G Margulies
Noreen A Madoyan
Trustee(s):
Wesley H Avery (TR) Pro Se
11:00 AM
Adv#: 2:19-01211 Avery v. Wellington et al
2. Turnover of Bankruptcy Estate Property Under 11 U.S.C. Section 542(a); and 3. Authorization to Sell Estate Property Under 11 U.S.C. Section 363(h) and FRBP 7001(3) Free of Co-Owner Interest; 4. Bar Debtor and Amos Q. Wellington from Recovering Avoided Transfer Under Bankruptcy Code, Under 11 U.S.C. Section 522(g)(1)(A) and (B)
fr. 9/24/19, 11/12/19, 3/10/20
Docket 1
Debtor(s):
Letitia Louise Wellington Pro Se
Defendant(s):
Letitia Louise Wellington Pro Se
Amos Q. Wellington Pro Se
Jonathan Wellington Pro Se
Michael Wellington Pro Se
Plaintiff(s):
Wesley H Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19, 2/4/20, 4/7/20
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
Docket 43
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
Docket 43
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20, 5/19/20
Docket 1
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By
11:00 AM
Christian T Kim James A Dumas Jr
11:00 AM
Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20, 5/19/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
11:00 AM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20
Docket 332
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
1:00 PM
Docket 172
- NONE LISTED -
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 140
Please see the tentative ruling for the status conference (calendar no. 3, 7/14/20 at 1:00 p.m.)
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 1
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
First interim fee application of Debtor's counsel (the "Fee Application," dkt. 140)
Approve $28,315.00 in fees, and $3,020.20 in expenses, for a total of
$31,335.20.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Disputed under the stipulation for use of cash collateral and adequate protection (the "Stipulation," dkt. 62)
On 3/9/20, this Court issued an order (dkt. 64) approving the Stipulation. On 6/24/20, the Internal Revenue Service ("IRS") filed a declaration of default under the Stipulation (dkt. 144) and lodged a proposed order prohibiting the use of cash collateral (see dkt. 145). On 6/25/20, Debtor filed his opposition (dkt. 146) to the declaration of default. On 7/2/20, this Court issued an order setting this dispute for hearing (dkt. 147).
There is no tentative ruling, but the parties should be prepared to
1:00 PM
address the issues raised in this Court's order (dkt. 147), which are reproduced herein:
... Debtor is directed to address (i) how the allegedly lost May 12, 2020 payment was made (money order, personal check etc.), (ii) whether Debtor can stop and has stopped payment on that lost payment, and (iii) whether Debtor has taken steps to provide a substitute payment to the IRS. See dkt. 146, p.2:7-11 & Ex. 1.
... the IRS is directed to address what steps have been taken to locate the allegedly lost payment.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: 8/14/20. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
1:00 PM
appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including the March MOR (dkt. 121) and latest filed Status Report (dkt. 132).
Debtor's counsel should be prepared to propose a deadline for any objections to claims, and to file a Plan and Disclosure Statement. See dkt. 132, p.3:3-4.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: see above. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 62
Please see the tentative ruling for the status conference (calendar no. 3, 7/14/20 at 1:00 p.m.)
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 94
Please see the tentative ruling for the status conference (calendar no. 5, 7/14/20 at 1:00 p.m.)
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
6/2/20
Docket 1
Tentative Ruling for 7/14/20:
Appearances are not required on 7/14/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
First and final fee application of Debtors' counsel (dkt. 94)
Allow Resnik Hayes Moradi LLP $29,958.00 in fees and $1,871.40 in expenses, for a total of $31,928.40, and authorize payment from the retainer and as agreed between counsel and Debtors.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19. A Plan (dkt. 69) was confirmed on 6/8/20 (dkt. 91). A post-confirmation status conference is set for 8/4/20 at 1:00 p.m., with a brief written status report due 7/21/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 16
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the status conference (calendar no. 7, 7/14/20 at 1:00 p.m.)
Tentative Ruling for 6/16/20:
Please see the tentative ruling for the status conference (calendar no. 2, 6/16/20 at 1:00 p.m.)
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 7/14/20:
Continue as set forth below. Appearances are not required on 7/14/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's application to employ general bankruptcy counsel (the "Employment Application," dkt. 16), and Debtor's supplemental declaration (dkt. 60)
Grant, subject to Judge Bason's standard employment terms in his posted Procedures (available at www.cacb.uscourts.gov).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan and Disclosure Statement*: Extend the deadline to file to
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8/15/20, because the COVID-19 pandemic is not a circumstance for which Debtor should "justly be held
accountable." 11 U.S.C. 1189(b). Debtor is directed to use the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee, the Subchapter V Trustee, and any parties requesting a copy of those forms - this Court will set a deadline and procedures at a later time). Note: Although Subchapter V contemplates only a Plan, not a Disclosure Statement, the required form Plan has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so Judge Bason requires that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b).
Continued status conference: 9/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required by counsel for the Debtor and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
1:00 PM
Current issues
Debtor's application to employ general bankruptcy counsel (the "Employment Application," dkt. 16)
This Court's order (dkt. 53) set the Employment Application for hearing and directed Debtor to file and serve a declaration and/or brief addressing the issues set forth in the order no later than 6/2/20. As of the drafting of this tentative ruling, no such additional papers have been filed. Why not?
Debtor is directed to address the issues raised in this Court's order (dkt. 53).
Debtor's plan
Pursuant to 11 U.S.C. 1189(b), Debtor was required to file a plan no later than 6/4/20. As of the drafting of this tentative ruling, no plan has been filed. Why not? If no party in interest has sought any consequence for missing that deadline, should this Court impose any remedy sua sponte?
Monthly Operating Report ("MOR") (4/20) (dkt.57)
The MOR shows that Debtor has only $168.94 in the bank. The MOR shows substantial negative cash flow, even before including the unpaid quarterly sales taxes. The MOR also shows that Debtor's projection of
$8,000 for cash receipts in April of 2020 was off by $3,682.58, and if Debtor's projection of $8,000 of cash receipts for May of 2020 is off by a similar amount then Debtor will have a negative account balance. Is Debtor's business doing anything but depleting the bankruptcy estate?
In addition, this Court notes that Debtor's MOR has a typographical error (in line 22, "net case flow" instead of "net cash flow"). This suggests that the MOR is not on the US Trustee's official form. How can parties in interest and this Court rely on the completeness of the MOR if it is not on the official form?
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: See above
1:00 PM
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Continue as set forth below. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set
1:00 PM
a deadline and procedures at a later time).
Continued status conference: 6/16/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required by counsel for the debtor and by the debtor's principal(s) themselves, but pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements to appear. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report
Per this Court's scheduling order (dkt. 12), Debtor was required to file a status report no later than 14 days before this hearing (3/17/20). As of the drafting of this tentative ruling, no status report has been filed. Why not?
Debtor's emergency cash collateral motion (dkt. 23)
Grant on a final basis, on the same terms and conditions previously ordered (dkt. 33)
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes
1:00 PM
ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 5/12/20 at 1:00 p.m., status report due 4/28/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/17/20:
Appearances required, but pursuant to Judge Bason's COVID-19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's emergency cash collateral (dkt. 23)
Grant on an interim basis, subject to (i) resolution of certain preliminary issues and (ii) certain conditions, as set forth in calendar no 1, 3/17/20 at 1:30
1:00 PM
p.m.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan/Disclosure Statement*: file by 6/4/20, pursuant to 11 U.S.C. Section 1189(b), using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 3/31/20 at 1:00 p.m., status report due 3/17/20 per order setting initial status conference (dkt. 12)
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 06/16/20
Docket 1
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the filed documents and records in this adversary proceeding.
Current issues
Joint status report
Plaintiffs and Debtor/Defendant were required to file a joint status report at least 14 days prior to this status conference, 6/30/20. See adv. dkt. 4 & 6. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Motion To Dismiss
In light of this Court's direction to the parties to attend mediation in section (B)(2), the tentative ruling is to continue the hearing on
1:00 PM
Debtor/Defendant's Motion to Dismiss (adv. dkt. 11) from 7/28/20 at 2:00 p.m. to the same date and time as the continued status conference set in section (B)(3) below.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 7/28/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue
1:00 PM
his own order).
Deadlines
This adversary proceeding has been pending since 4/13/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: N/A Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 8/18/20.
Continued status conference: 9/1/20 at 1:00 p.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Defendant(s):
Reijo Kustaa Myllyla Pro Se
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Argaez De Chuc Represented By James A Judge
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
1:00 PM
Docket 6
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
1:00 PM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Continue as set forth below. Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/14/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 6
Tentative Ruling for 7/14/20:
Continue as set forth below. Appearances are not required on 7/14/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file by 8/18/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
1:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
fr. 10/29/19, 11/5/19, 12/17/19, 1/28/20, 03/31/20,
5/5/20
Docket 51
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the status conference (calendar no. 12, 7/14/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Continued hearing on interim collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113, 124), Hanmi's supplemental statement (dkt. 104)
There is no tentative ruling. The parties should be prepared to address whether Hanmi will consent to further use of its cash collateral. Given the number of continuances of this matter, the parties are directed to address whether this Court should grant the motion on a final basis (subject, as always, to Hanmi's rights to seek relief in the event that Debtor's finances change or there are other grounds to seek to amend the terms for use of cash collateral in order to provide adequate protection).
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is
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8/14/20 (dkt. 78)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/15/20 at 1:00 p.m., Brief written status report due 9/1/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
fr. 5/5/20
Docket 131
Please see the tentative ruling for the status conference (Calendar no. 14, 7/14/20 at 1:00 p.m.).
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
1:00 PM
11/12/19, 12/10/19, 1/28/20, 3/3/20, 5/5/20, 5/12/20
Docket 7
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
Debtors' disclosure statement (dkt. 131, as amended by dkt.135, Ex.1) and chapter 11 plan (dkt. 132), Order setting combined hearing on disclosure statement approval and confirmation hearing (dkt. 137), solicitation package pos (dkt. 139), ballot summary (dkt. 152), order approving CSMC 2018-SP3 plan treatment stipulation (dkt. 157), order approving IRS plan treatment stipulation (dkt. 83), order approving Mazakoda, Inc. settlement (dkt. 126)
The tentative ruling is that it is necessary to amend the plan documents and re-solicit votes because of changes in Debtors' current and projected income.
Background
On 4/24/20, Debtors and secured creditor CSMC 2018-SP3 stipulated to continue this hearing due to a reduction in Debtors' income due to
COVID-19 that "affect[ed Debtors'] ability to confirm a Chapter 11 Plan . . .
1:00 PM
and start making the required payments on the Effective Date" (dkt. 148, p.3:4-6). On 6/30/20, Debtors filed a status report indicating that Mr.
Melamed is expecting to return to work in mid-July and Ms. Melamed will begin a new part-time job beginning mid-July (dkt. 164, p.3:14-19).
Income
Debtors' status report does not adequately discuss the impact COVID-19 has had on Debtors' finances or the feasibility of their Plan. For example, did Debtors deplete funds that were designated for effective date payments? Have Debtors cured any the most recent postpetition delinquencies in their mortgage payments or, alternatively, will Debtors' new income be sufficient to cure arrears and make all proposed plan payments? Moreover, regardless of the answers to these questions, it appears that Debtors' current and projected income might have changed sufficiently that creditors must have disclosure of these new circumstances, and a new opportunity to vote and/or object.
Alternative tentative ruling, if foregoing issues are adequately addressed
If Debtors can establish by evidence or offers of proof that there is no material changes that would require re-balloting, then the tentative ruling is to approve the disclosure statement (dkt. 131, as amended by dkt.135, Ex.1) on a final basis and confirm the plan (dkt.132) based on the "new value" contribution and satisfaction of the other elements for "cramdown." 11 U.S.C. 1129(b). In that event, Debtors are directed to lodge two proposed orders: one approving the disclosure statement, and a second confirming the plan and setting a post-confirmation status conference (with the language required by the local bankruptcy rules).
Deadlines/dates. This case was filed on 10/22/18.
Bar date: 2/8/19 (dkt. 27, timely served dkt. 30)
Procedures order: dkt. 6, timely served dkt. 14
Plan (dkt. 132)/Disclosure Statement (dkt. 131)*: See section 1(a) above.
Continued status conference: If Plan is confirmed, 10/27/20 at 1:00
p.m. (with a status report due 10/13/20); otherwise 8/4/20 at 1:00 p.m. (no written status report required).
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
2:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
Docket 11
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo
Plaintiff(s):
Gilbert Martinez Represented By James A Judge
Ofelia Argaez de Chuc Represented By James A Judge
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
2:00 PM
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
2:00 PM
Docket 1139
Please see the tentative ruling for the status conference (calendar no. 8, 7/14/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Department of the Treasury, Internal Revenue Service
Docket 1143
Please see the tentative ruling for the status conference (calendar no. 8, 7/14/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20, 5/19/20
BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
fr. 6/16/20
Docket 1043
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 6/16/20
Docket 1049
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 5/19/20
Docket 962
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20
Docket 1
Tentative Ruling for 7/14/20:
Appearances required by counsel for Debtor, the IRS, and any party opposing Debtor's DIP Financing Motion (defined below).
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion To Approve Compromise Between Debtor And Kate Kenny (dkt. 1139)
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Motion For Order Partially Disallowing Claim Of United States Of America, Department Of The Treasury, Internal Revenue Service ("IRS") (the "Claim Objection," dkt. 1143); Opposition of the IRS (dkt.1217); Debtor's Notice of Withdrawal (dkt.1230); IRS' Objection to unilateral withdrawal of
2:00 PM
motion with leave to refile at a later date (dkt.1236)
There is no tentative ruling. The parties are directed to address the issues raised by the IRS in its objection to withdrawal of the Claim Objection.
Motion For Order Authorizing Debtor To Borrow Money Secured By A Junior Lien On Real Property (the "DIP Financing Motion," dkt. 1224)
As of the preparation of these tentative rulings, the deadline for any opposition has not yet passed. If there is no opposition, the tentative ruling is to grant the DIP Financing Motion.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 7/28/20 at 2:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By
2:00 PM
David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 1224
Please see the tentative ruling for the status conference (calendar no. 8, 7/14/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Adv#: 2:19-01516 Gonzalez v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20, 5/19/20
Docket 1
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 7/14/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 2:00 p.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
2:00 PM
Preliminary issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint? If so, Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The summons provides that the parties must file a joint status report no later than 14 days before the hearing (3/24/20). Adv. dkt. 2, p.2. As of the drafting of this tentative ruling, no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. If the summons and complaint have been served then failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See generally Stern v.
Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif,
2:00 PM
135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
2:00 PM
appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 3/3/20:
Continue as set forth below. Appearances are not required on 3/3/20.
Preliminary Issues
Proof of service of summons
A summons was issued on 12/26/19 (adv. dkt. 2), but as of the drafting of this tentative ruling, no proof of service evidencing service of the summons and complaint has been filed. Did the Trustee timely serve the summons and complaint?
Status report
The summons (adv. dkt. 2) provides that a joint status report must be filed by the parties no later than 14 days prior to the status conference (2/18/20). As of the drafting of this tentative ruling, no status report has been filed.
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Standard Issues
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct.
2:00 PM
2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 3/24/20.
Continued status conference: 4/7/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
Aston Business Solutions, Inc., Pro Se
Erica Martin Pro Se
J. Glenn Chaffin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
2:00 PM
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
2:00 PM
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20
Docket 332
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
The parties are directed to address (i) the status of their settlement efforts, and (ii) whether they have met and conferred re lodging proposed orders to take off calendar any future hearings that are mooted by this Court's order substantively consolidating Aston Business Solutions with Attitude Marketing. AttitudeCase, dkt.157; see also MacCase, dkt.501.
The Trustee is directed to address the status of his efforts to implement the Agreement For Settlement Of Claims And Substantive Consolidation approved by this Court. See AttitudeCase dkt.148&154; see also MacCase, dkt.495&500).
2:00 PM
Dates/deadlines
After addressing the foregoing issues, the tentative ruling is to continue all matters on calendar for today to 7/28/20 at 2:00 p.m., with no status reports required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
Docket 43
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 7/14/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the
2:00 PM
MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
2:00 PM
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:19-01517 Gonzalez, Chapter 7 Trustee v. Aston Business Solutions, Inc., et al
fr. 3/3/20, 4/7/20, 5/19/20
Docket 1
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 7/14/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Revised Tentative Ruling for 4/7/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice. Please contact CourtCall at (888)
882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
2:00 PM
Preliminary issues
Proof of service re another summons (adv. dkt. 16)
In response to the Defendants' argument in their Motion to Dismiss (adv. dkt. 11) that Erica Martin was not served with the Trustee's Complaint (adv. dkt. 1), the Trustee stated that Erica Martin would be served with a new summons. Adv. dkt. 15, p.3:13-15. Another summons was issued on 2/4/20 (adv. dkt. 16) and at the hearing on 2/18/20 the Trustee represented that this summons had been served; but as of the drafting of this tentative ruling, no written proof of service has been filed on the docket. The Trustee is directed to file a proof of service evidencing such service no later than 4/10/20.
Allegations in the complaint (adv. dkt. 1) re Section 727
The Adversary Proceeding Cover Sheet to the Trustee's complaint checks the box for objection/revocation of discharge pursuant to Section 727. Adv. dkt. 1, PDF p.1. But the body of the complaint does not address Section 727. The Trustee is reminded in future to avoid such discrepancies.
Status report
The new summons provides that the parties were required to file a joint status report no later than 14 days before this status conference (3/24/20).
As of the drafting no status report has been filed. The parties are reminded of their obligation to file status reports.
Standard issues
This Court has reviewed the filed documents and records in this adversary proceeding. The following are Judge Bason's standard requirements for status conferences, modified slightly to account for the fact that appearances are not required. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
Failure to contest this tentative ruling will be construed as consent, to the extent any consent is required, or alternatively as a waiver or forfeiture. See
2:00 PM
generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: This adversary proceeding has been pending since 12/23/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 4/28/20.
Continued status conference: 5/12/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
2:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/7/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
Aston Business Solutions, Inc., Represented By
William H Brownstein
Erica Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Plaintiff(s):
Rosendo Gonzalez, Chapter 7 Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
9:00 AM
Adv#: 2:19-01192 Mesnick v. Witke et al
Docket 1
Debtor(s):
Bret Russell Witke Represented By
Michael H Raichelson
Defendant(s):
Bret Russell Witke Represented By
Michael H Raichelson
Bret Russell Witke Design Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Michael Mesnick Represented By Craig G Margulies
Noreen A Madoyan
Trustee(s):
Wesley H Avery (TR) Pro Se
8:30 AM
Docket 24
NOTE: For purposes of the deadline to notify opposing counsel/parties of an intent to contest tentative rulings (1/2 the time between the time of posting and the hearing time), the following Tentative Rulings were first posted shortly before:
9:35 a.m. on 7/21/20.
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtor should be prepared to address the issues raised in the Chapter 13 Trustee's Comments Or Objection (dkt. 25).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Craig Jerius Carpenter Represented By Sundee M Teeple
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 56
Grant. Debtor is directed to (a) file mandatory local form F
3015-1.8.DISCHARGE.APPLICATION and (b) lodge a proposed order giving creditors notice of the 30-day deadline to file a complaint under 11 U.S.C.
523(a)(6) pursuant to Rule 4007(d) (Fed. R. Bankr. P.) by no later than 7/30/20. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Tawana Falesha Carter Represented By Michael E Clark Barry E Borowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 42
Continue to 8/27/20 at 8:30 a.m. to address the following issues. Appearances are not required on 7/23/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Service.
The motion papers were not served:
to the address for notices in the creditor's proof of claim (claim no.
4);
as well as in the manner prescribed by Rule 7004(b)(4)&(5) -
addresses and instructions are included in the Court Manual.
No later than seven days after the date of this hearing, Movant must file and serve notice of the continued hearing and proof of service reflecting service of the motion papers in a manner consistent with this tentative ruling.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative
8:30 AM
expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%
then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Michael John Morales Represented By Claudia C Osuna
Joint Debtor(s):
Maria C Morales Represented By Claudia C Osuna
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 43
Overrule the claim objection for the reasons set forth in the Bank of New York Mellon opposition (dkt. 59). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tausha Suzette Petrotta Represented By
8:30 AM
Trustee(s):
Donna R Dishbak
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 18
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 36
NOTE: For purposes of the deadline to notify opposing counsel/parties of an intent to contest tentative rulings (1/2 the time between the time of posting and the hearing time), the following Tentative Rulings were first posted shortly before:
3:45 p.m. on Friday 7/24/20.
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aura Marina Figueroa Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 37
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Movant(s):
CARRINGTON MORTGAGE Represented By
Diana Torres-Brito Julian T Cotton
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 34
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Vivian Louise Tann Represented By Andrew Moher
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REVERSE MORTGAGE FUNDING, LLC
vs DEBTOR
Docket 34
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Joyce Elaine Durden Represented By Thomas B Ure
Movant(s):
Reverse Mortgage Funding LLC Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 29
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Manuel Carrillo Represented By Jaime A Cuevas Jr.
Movant(s):
The Bank of New York Mellon, Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
vs DEBTOR
Docket 37
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
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Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Alfred Leon Borders Represented By Thomas B Ure
Movant(s):
United States Department of Represented By Elan S Levey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, N.A.
vs DEBTOR
Docket 35
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santiago Corral Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Annayelli Marquina Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC Bank USA, N.A., as Trustee Represented By
Jacky Wang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NORM POMERANZ and TIM BLOCK
vs DEBTOR
Docket 21
Grant in part and deny in part as set forth below.
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's motion to continue the automatic stay under 11 U.S.C. 362(c)(3) (dkt. 9) and order denying motion (dkt. 31)
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no
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automatic stay because (a) Debtor's prior case (#2:19-bk-12954-NB) was dismissed (on 6/10/20) within one year before this case was filed (on 6/16/20), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained (see dkt. 31). The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is
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sufficient evidence and notice. See dkt. 31.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Frank Larrybuck Buchanan Represented By Donald E Iwuchuku
Movant(s):
Courtesy NEF Pro Se
Norm Pomeranz and Tom Block Represented By
Leon D Bayer
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NISSAN MOTOR ACCEPTANCE CORP
vs DEBTOR
Docket 45
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Mayra Alejandra Chaidez Represented By Gregory M Shanfeld
Harout G Bouldoukian
Movant(s):
Nissan Motor Acceptance Represented By Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 33
Debtor(s):
William Salvatore Weber Represented By
Eric Bensamochan
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ESTATE OF MAYNARD POYNTER
vs DEBTOR
Docket 144
- NONE LISTED -
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Estate of Maynard Poynter Represented By Christopher L Blank
10:00 AM
Docket 11
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Yunuen Campos' motion for relief from the automatic stay pursuant to 11 U.S.C. 362(d) to proceed with an action in nonbankruptcy forum (dkt. 22, "R/S Motion"), Debtor's opposition (dkt.34)
The tentative ruling is to continue the hearing on this matter to 8/18/20 at 1:00 p.m. (contemporaneous with another matter in this case) due to (i) the self-calendaring of this motion without adequate time or any order shortening time, (ii) the lack of service on the 20-largest creditors (or on Debtor individually - not just Debtor's counsel) as required by the applicable federal bankrupty rules, local rules, and the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov), and (iii) Debtor's request for additional time, so as to be able to file a motion and/or present evidence regarding the parties' alleged mediation agreement, which might (or might not) moot the relief requested in this motion for relief from the automatic stay. The tentative ruling is to leave in place the normal deadlines for any supplemental moving papers (21 days before the hearing), any supplemental opposition (14 days), and any reply (7 days).
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Debtor's motion to continue the automatic stay pursuant to 11 U.S.C. 362(c)(3) (dkt. 11, amended by dkt. 20), Yunuen Campos' opposition (dkt. 31) and evidentiary objections (dkt. 32)
Overview
The tentative ruling is that one strong statutory policy in favor of imposing the automatic stay, embodied in the statute, is to protect creditors (not just the debtor). For example, the automatic stay prevents one or more creditors from levying on assets before other creditors can discover and levy on those assets. That type of prejudice can be with or without any collusion or bad motives (e.g., a debtor could engage in transactions with a "friendly" creditor, or a fictional creditor, or any variation; and some such transactions could be avoidable on other grounds but the automatic stay generally voids all such transactions, whether or not they involve any bad motives or tactics).
Although this Court has grave concerns about Debtor's repeated bankruptcy filings and his conduct in past cases, the tentative ruling is that, at this early stage of the current case, the documents filed by Debtor so far appear to reflect proper prosecution of this current case and the potential, with appropriate safeguards, to provide appropriate treatment for Ms. Campos and other creditors. Therefore the tentative ruling is that, if Debtor consents to certain limitations and protections of creditors' rights as outlined below, he will have established "good faith" within the narrow meaning of 11 U.S.C.
362(c)(3).
Governing law
The test for "good faith" under 11 U.S.C. 362(c)(3) is not entirely clear.
By way of analogy, this Court notes that, in determining whether or not to dismiss a bankruptcy case for lack of good faith, there is authority that courts must consider the totality of the circumstances. See In re Montoya, 342 B.R. 312, 317 (Bankr. S.D. Cal. 2006). Some considerations in assessing the totality of the circumstances include (but are not limited to): "1) whether debtor misrepresented facts in the petition or the plan, unfairly manipulated the Code or otherwise filed the current chapter 13 plan or petition in an inequitable manner; 2) debtor's history of filings and dismissals; 3) whether debtor only intended to defeat state court litigation; and 4) whether egregious behavior is present." Montoya, 342 B.R. at 317 (citing In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. 1999)).
An additional circumstance, as explained above, is to consider how the
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application of the automatic stay may protect creditors from one another. This can foster equality of distribution while preventing a potentially destructive, "winner take all" race to collect.
Another analogy is to subsection (d) of section 362. The tentative ruling is that proceedings under section 362(c), like those under section 362(d), are intended to be "summary proceedings" rather a full trial. Among other things, a full trial at the inception of the case would defeat the purpose of the "breathing spell" that is one of the purposes of the automatic stay, and that would harm both debtors and creditors. Cf. In re Veal, 450 B.R. 897, 914 (9th Cir. BAP 2011) (citing authority that hearings under section 362(d) are "summary" proceedings); In re Robbins, 310 B.R. 626, 631 (9th Cir. BAP 2004) ("relief from stay hearings are limited in scope ... do not involve a full adjudication on the merits ..." and adjudicate claims only to the extent of determining "whether a creditor has a colorable claim") (citations omitted).
Similarly, because of the expedited time frame under section 362(c)(3), the limited issues to be decided, and the fact that the merits of any underlying disputes are not fully adjudicated, the tentative ruling is that any determination of "good faith" for purposes of section 362(c)(3) has very limited if any claim or issue preclusive effect, and that any party opposing the good faith determination need only show a "colorable" basis to establish that it has standing and is the real party in interest who has a right to be heard in opposition to any good faith determination. Cf. Veal, 450 B.R. 897, 914-15 ("stay relief litigation has very limited claim preclusion effect" and "[g]iven the limited nature of the relief obtained through a motion for relief from the stay, the expedited hearing schedule § 362(e) provides, and because final adjudication of the parties' rights and liabilities is yet to occur, ... a party seeking stay relief need only establish that it has a colorable claim to enforce a right against property of the estate.") (citations omitted); and see generally In re M Capital Corp., 290 B.R. 743 (9th Cir. BAP 2003) (limitations on "good faith" findings when all facts and circumstances might not be established, in analogous context of 11 U.S.C. 363(m)).
To be clear, the tests for "good faith" under paragraphs (c)(3) and (c)
of section 362 are not the same as the tests of "good faith" for purposes of whether to dismiss a case, nor is the test under section 362(c)(3) or (4) the same as the test for determining whether to grant relief from the automatic stay under section 362(d). In all of these instances, the analysis may be informed by similar considerations, but there are differences.
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For example, if a debtor proposes a plausible attempt to provide
adequate protection, or a plausible outline of a possible financial reorganization, that may establish or go a long way toward establishing "good faith" under subsection (c) of section 362, even if the proposed protection of the creditor's interest turns out not to be "adequate" (11 U.S.C. 362(d)(1)) or if the debtor ultimately is unable to show that property is necessary to an "effective" reorganization (section 362(d)(2)(B)). The point is only that there are parallels in the analysis under subsections (c) and (d) of section 362 as well as the reported decisions involving dismissal of cases for lack of "good faith," and the tentative ruling is that each type of analysis of "good faith" informs the others.
Based on the foregoing, the tentative ruling is to consider the totality of the circumstances, in a summary proceeding, with all parties in interest being heard, and with very limited if any preclusive effect on the "good faith" issue in any other contexts (although the same underlying evidence might be relevant in other contexts). With this framework, this Court turns to the merits.
Contemplated conditions
In general, this Court contemplates (A) requiring more than the usual level of disclosure and transparency by Debtor and (B) requiring funds to be held only in bank accounts that this Court has authorized, and that have safeguards against unauthorized disbursement. The parties are directed to address at the hearing (x) how to implement the foregoing general principles, and (y) whether any additional conditions are appropriate in ordering that the automatic stay be continued. Additionally, Debtor is reminded that this Court's Procedures Order (dkt. 4) provides:
4. Affiliates. For all reporting purposes – including Monthly Operating Reports ("MORs"), disclosure statements, etc. – Debtor must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses and (b) any spouse. See §§ 101(2) & (9); Rule 2015.3; SBE v. Woo, 82 Cal. App.4th 481, 483-84 (2000). Prior authorization of this Court is required for Debtor to cause any affiliate to act out of the ordinary course of that affiliate’s business (§ 363(c)). In jointly administered cases, MORs must be filed in each debtor’s separate case. Debtor may request at the principal status conference to be excused from these requirements. [Id., p.2:11-18].
The tentative ruling is not to excuse Debtor from these requirements
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and, to the contrary, to emphasize that he is required to provide full transparency for all affiliates' finances including, but not limited to, his medical practice and, to the extent of any financial transactions that relate to Debtor directly or indirectly, his girlfriend, his children, and any other family members.
Evidentiary objections
The tentative ruling is that none of the foregoing depends on this Court's ruling on Ms. Campos' evidentiary objections (dkt.32). But, for completeness, the tentative ruling is to sustain those objections except to the extent that the statements at issue are offered solely for purposes of establishing Debtor's subjective state of mind for purposes of whether he is acting in "good faith."
Form of order
Based on the foregoing, the tentative ruling is that after the hearing date this Court will prepare an order and the tentative ruling is to include special provisions regarding disclosure, transparency, and safeguarding as noted above, as well as the following language:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not
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intended to have any binding effect with respect to any future
assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
John Martin Kennedy Represented By Sandford L. Frey
10:00 AM
YUNUUEN CAMPOS
vs DEBTOR
Docket 22
Please see the tentative ruling for Debtor's motion to continue the stay pursuant to 11 U.S.C. 362(c)(3) (Calendar No. 12, 7/28/20 at 10:00 a.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
Yunuen Campos Represented By Lauren A Dean
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U.S. BANK N.A. vs
DEBTOR
Docket 369
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Candice Candice Bryner
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Robert P Zahradka
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel
Michael G D'Alba
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 47
Debtor(s):
Carol Y Espina Represented By Jacqueline D Serrao
Movant(s):
Wells Fargo Bank, National Represented By Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 37
- NONE LISTED -
Debtor(s):
Sarah VanDerBeets Represented By Kateryna Bilenka
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 169
Tentative Ruling for 7/28/20:
Appearances required by counsel for Movant.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Movant's notice of continued hearing (dkt. 171)
Current Issues
This matter was continued to this date with a deadline of 7/15/20 for Movant to serve: (i) notice of this hearing, (ii) the motion papers, and (iii) a copy of this Court's adopted tentative ruling on co-debtor Edmund Lincoln Anderson via U.S. mail no later than 7/15/20, based on Movant's initial lack of
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service on Mr. Anderson.
On 7/15/20, Movant filed a notice of continued hearing (dkt. 171). But the proof of service attached to that notice only shows service of the underlying motion papers (with the old hearing date), not (a) the notice of continued hearing or (b) a copy of this Court's adopted tentative ruling.
There is no tentative ruling, but the parties are directed to address whether this Court should or should not excuse Movant's partial non- compliance with the prior adopted tentative ruling, and terminate the co- debtor stay under 11 U.S.C. 1301(c).
Note: The foregoing relief pertains only to the automatic stay in this case, not to the automatic stay in Mr. Anderson's case. Any relief in that case will have to be sought by a motion duly filed and served in that case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/14/20:
Grant in part and continue in part as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within
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7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
The tentative ruling is to continue the hearing on this motion to 7/28/20 at 10:00 a.m., with repect to Movant's request to terminate the co-debtor stay under 11 U.S.C. 1301(c) based on lack of service on the co-debtor, Edmund Lincoln Anderson, who has a separate chapter 11 case pending before Judge Bason [2:20-bk-113330NB]. The tentative ruling is to direct Movant to serve notice of that hearing, the motion papers, and a copy of this tentative ruling on Mr. Anderson via U.S. mail no later than 7/15/20.
Note: The foregoing relief pertains only to the automatic stay in this case, not to the automatic stay in Mr. Anderson's case. Any relief in that case will have to be sought by a motion duly filed and served in that case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eva Anderson Represented By
10:00 AM
Movant(s):
Edmond Richard McGuire
Wells Fargo Bank , N.A. Represented By Keith Labell Sean C Ferry Theron S Covey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NATIONAL ASSOICATION
vs DEBTOR
Docket 28
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions")
This matter was continued to this date to allow time for Debtor to conduct an accounting. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions")
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fretze Maria Majied Represented By Philomena N Nzegge
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01131 Chan et al v. Le Elegant Bath, Inc.
Pursuant to 11 U.S.C. Section 551; and (4) Disallowance of Claim Pursuant to 11 U.S.C. Section 502(d)
Docket 1
Continue to 10/27/20 at 1:00 p.m., concurrent with other matters, pursuant to the parties' stipulation and order for standstill pending approval of settlement (main case dkt. 149, 152). The parties are directed to file a joint status report two weeks before the continued hearing.
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Defendant(s):
Le Elegant Bath, Inc. Pro Se
Plaintiff(s):
Anthony Chan Represented By Beth Gaschen
AC YU Holding, LLC Represented By Beth Gaschen
A Touch of Brass Inc. Represented By Beth Gaschen
11:00 AM
Application for fees and expenses [Jason M. Rund, Chapter 7 Trustee]
Docket 33
Approve the Trustee's final report and allow the Trustee $701.43 in fees and
$26.92 in expenses, for total award of $728.35. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose Amilcar Espino Represented By
11:00 AM
Trustee(s):
Lauren M Foley
Jason M Rund (TR) Pro Se
11:00 AM
Docket 331
Allow Levene, Neale, Bender, Yoo, & Brill LLP $99,907.50 in fees and
$8,259.00 in expenses, for a total of $108,166.50, and authorize payment on a pro rata basis with all other estate professionals and administrative claimants. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Lake Mathews Mineral Properties, Represented By
Michael Jay Berger Cassandra J Richey
Shirley Smith - SUSPENDED -
Trustee(s):
Elissa Miller (TR) Represented By Franklin C Adams Juliet Y Oh
11:00 AM
Docket 329
Allow Hahn Fife & Company LLP $1,984.00 in fees and $250.50 in expenses, for a total of $2,234.50, to be paid on a pro rata basis with all other estate professionals and administrative claimants. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lake Mathews Mineral Properties, Represented By
11:00 AM
Trustee(s):
Michael Jay Berger Cassandra J Richey
Shirley Smith - SUSPENDED -
Elissa Miller (TR) Represented By Franklin C Adams Juliet Y Oh
11:00 AM
Application for fees and expenses [Elissa Miller, Ch. 7 Trustee]
Docket 332
Tentative Ruling for 7/28/20 (after this matter was added to the calendar):
Overrule the untimely objection filed by creditor Paul Merritt (dkt. 342) and approve the Trustee's request for $7,150.00 in fees and $1,044.41 in expenses, for a total of $8,194.41, to be paid on a pro rata basis with all other estate professionals and administrative claimants. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Lake Mathews Mineral Properties, Represented By
Michael Jay Berger Cassandra J Richey
Shirley Smith - SUSPENDED -
Trustee(s):
Elissa Miller (TR) Represented By Franklin C Adams Juliet Y Oh
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
fr. 08/07/18, 11/27/18, 2/5/19, 3/28/19, 06/06/19; 08/08/19, 11/19/19, 02/18/20, 5/20/20, 6/2/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
This matter was continued from 6/2/20 to this date to allow additional time for the parties to meet and confer with Debtor/Defendant's counsel, John Wolcott, Esq., about the issues raised in this Court's "Order (1) Taking Trial Off Calendar and (2) Setting Status Conference" (adv. dkt. 37). There is no tentative ruling, but the parties should be prepared to update this Court on the status of those efforts and whether they have agreed to any proposed trial procedures.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
11:00 AM
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv.dkt.14).
Deadlines: [intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
There is no tentative ruling. The parties are directed to address the issues raised in this Court's "Order (1) Taking Trial Off Calendar and (2) Setting Status Conference" (adv. dkt. 37).
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
11:00 AM
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv.dkt.14).
Deadlines: [intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/8/19:
Appearances required.
Tentative Ruling for 2/5/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address the following revisions to this Court's scheduling order (adv. dkt. 12). See Joint Status Report (adv. dkt. 14) and Notice of Ruling (adv. dkt. 15).
(a) Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): 2/15/19. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A Continued status conference: N/A
Lodge Joint Proposed Pre-Trial Order: 2/21/19
11:00 AM
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 2/ (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 2/28/19 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 11/27/18:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures"). There is no tentative ruling, but the parties should be prepared to address a new discovery deadline and other revisions to this Court's scheduling order (adv. dkt. 12). See Joint Status Report (adv. dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/7/18:
Appearances required. The court has reviewed defendant/debtor Quinn's unilateral status report (dkt. 7) and the other filed documents and records in this adversary proceeding. Counsel for the plaintiff/creditor Duff is directed to address why no status report was executed by plaintiff.
11:00 AM
The following are Judge Bason's standard requirements for status
conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented. See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr.
C.D. Cal. 2016).
Mediation. Is there is any reason why this court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 8/24/18 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines: This adversary proceeding has been pending since 5/24/18. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
11:00 AM
Discovery cutoff (for completion of discovery): 10/8/18. Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 11/27/18. Joint Status Report: 11/13/18.
Continued status conference: 11/27/18 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
11:00 AM
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status report - unilateral or joint?
Plaintiff's counsel has filed a status report that has "/S/" in the Defendant/Debtor's signature line. Is Plaintiff asserting that Defendant/Debtor has signed the status report?
Status of Mediation
This matter was assigned to mediation on 6/18/20 (adv. dkt. 11), but Plaintiff's unilateral status report (adv. dkt. 13) does not address whether a date for mediation has been set or provide any other information on the status of the parties' mediation efforts (if any). The parties should be prepared to provide an update on where that stands.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these
11:00 AM
issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
Note: From the status report (adv.dkt.13) it appears that the parties have both consented to this Court issuing final orders/judgments.
But, as noted above, it is unclear whether Defendant/Debtor has signed that Status Report.
Mediation: See section (A)(2) above.
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: TBD Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 9/1/20
Continued status conference: 9/15/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you
11:00 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Missing status report(s)
As of the preparation of this tentative ruling, the parties have not filed status report(s). Why not?
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his
11:00 AM
claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 6/16/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: TBD Discovery cutoff (for completion of discovery): TBD Expert(s) - deadline for reports: TBD
Expert(s) - discovery cutoff (if different from above): TBD Dispositive motions to be heard no later than: TBD
Joint Status Report: 7/14/20
Continued status conference: 7/28/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
11:00 AM
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
This Court has reviewed the documents and records filed in this adversary proceeding.
Current issues
No evidence that Defendant has been served
As of the preparation of this tentative ruling, there is no proof of service demonstrating that Defendant has been served with the summons and complaint. Is there any reason why this proceeding should not be dismissed based on Plaintiff's apparent failure to prosecute this action?
No status report
Plaintiff has not filed a unilateral status report. Why not? The tentative ruling is that this provides another basis for this Court to dismiss this proceeding.
The following are Judge Bason's standard requirements for status conferences.
Venue/jurisdiction/authority.
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The parties are directed to address any outstanding matters of (a)
venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted.]
Deadlines: This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 1/21/20
Continued status conference: If this proceeding is not dismissed: 2/4/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
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Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Pro Se
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
11:00 AM
Docket 170
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
fr. 5/5/20, 6/30/20
Docket 171
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Movant(s):
Zeta Graff Represented By
Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the recently filed documents in this case, including Debtor's status report (dkt. 21).
UST Compliance
Debtors are directed to address the status of establishing debtor in possession bank accounts, and compliance with the "7 day package" for the United States Trustee.
Income
Debtors' Bankruptcy Schedule I lists $24,000 per month of combined income from employment by their affiliate Spliffin Group, Inc., but (i) they list
$0 for any any income tax, medicare, or social security deductions (dkt.17, at PDF pp.39-40) and (ii) Debtors report $0 in income from any source for the past several years in their Statement Of Financial Affairs ("SOFA") (dkt.17, pp.1-2 (PDF pp.45-46)). How are these things possible?
Affiliates' finances
This Court's Procedures order (dkt.6) provides:
4. Affiliates. For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor
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must disclose all income, expenses, assets, and liabilities of (a)
affiliated businesses and (b) any spouse. See §§ 101(2) & (9); Rule 2015.3; SBE v. Woo, 82 Cal. App.4th 481, 483-84 (2000). Prior
authorization of this Court is required for Debtor to cause any affiliate to act out of the ordinary course of that affiliate’s business (§ 363(c)). In jointly administered cases, MORs must be filed in each debtor’s separate case. Debtor may request at the principal status conference to be excused from these requirements. [Id., p.2:11-18]
Debtors are directed to address what steps are being taken to comply with this requirement, and whether, in addition to any other requirements, this Court should direct Debtors to file declaration(s) with a graphic chart of their affiliates' corporate/business structure/relationships.
Deadlines/dates. This case was filed on 6/23/20.
Bar date: 10/29/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.6 (timely served, dkt.16)
Plan/Disclosure Statement*: TBD
Continued status conference: 9/1/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
1:00 PM
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
1:00 PM
Docket 15
Appearances required by counsel for the debtor, principal(s) of the debtor, and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Status reports (dkt. 36, 37)
Bar date and plan deadline
Pursuant to First Amended General Order 20-01 (available at www.cacb.uscourts.gov under "Rules and Procedures"):
For chapter 11 cases filed under Subchapter V, all claims – except by governmental units – must be filed within 70 days after the date of the order for relief. Governmental units’ claims for chapter 11 cases filed under Subchapter V must be filed within 180 days after the date of the order for relief." [Id., p.2:4-7 (emphasis added)]
Similarly, 11 U.S.C. 1189(b) provides:
The debtor shall file a plan not later then 90 days after the order for relief under this chapter, except that the court may extend the period if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable. [Id. (emphasis added).]
The tentative ruling is that the emphasized language in each of the
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above quotations runs from the date of conversion to chapter 11, which was 7/1/20. Cf. 11 U.S.C. 348(a) (distinguishing between the general order for relief, and the order for relief under the chapter to which the case is converted). If this Court adopts that tentative ruling, the general claims bar date would be 70 days from 7/1/20, which is 9/9/20, and the deadline to file the plan would be 90 days from 7/1/20, which is 9/29/20. The tentative ruling is to issue an order memorializing those dates. The parties are directed to address whether this Court should adopt any different dates.
Budget motion
Debtor's status report checks the box indicating that no budget motion would be filed because, allegedly, it is not required by the presiding judge.
Dkt. 36, p.3. That is incorrect. Pursuant to the Posted of Judge Bason, Section VII(G) (available at www.cacb.uscourts.gov), a budget motion is required.
Required documents under 11 U.S.C. 1187(a)
Debtor's Subchapter V status report checks the box indicating that Debtor has not filed three of the required documents pursuant to 11 U.S.C. 1187(a). Dkt.37, p.4; see also 11 U.S.C. 1116(1). Debtor is directed to address why it did not comply with the requirements of the above referenced code sections "upon electing to be a debtor under this subchapter [V]." 11
U.S.C. 1187(a). The parties are directed to addresses what remedies this Court should consider for Debtor's failure to comply with 11 U.S.C. 1187(a).
Whether a separate disclosure should be required Debtor's Subchapter V status report checks the box indicating that in
its opinion, there is not "cause" for this Court to order the filing of a separate disclosure statement. Dkt.37, p.4. But the form Plan generally required by Judge Bason has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so Judge Bason's usual policy is to require that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b). The parties are directed to address whether any different procedure should be adopted in this case.
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27).
Bar date: 9/9/20 (see above) (DO NOT SERVE notice yet - court will prepare an order after the status conference).
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Procedures order: dkt.18 (timely served, dkt.20)
Plan/Disclosure Statement*: file by 9/29/20 (see above) using the forms required by Judge Bason, or other forms if expressly authorized (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/1/20 at 1:00 p.m. (no written status report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
1:00 PM
Jan Neiman as Real Estate Broker
Docket 242
Please see the tentative ruling for the status conference (Calendar no. 4, 7/28/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 49
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Subchapter V Trustee's application to employ real estate broker for Laurel Property (the "Broker Application," dkt. 242), Debtor's opposition (dkt. 248), Celtic Bank's response to Debtor's opposition ("Celtic's Broker Response," dkt. 254), Subvchapter V Trustee's reply ("Trustee's Broker Response," dkt. 257)
Grant the Broker Application, for the reasons set forth below, subject to
(i) Judge Bason's standard conditions, including no dual agency, and (ii) filing of Local Form F2014-1 (saying only "see Application" - unless there are matters that were not disclosed in the Application), all as required by the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov). Appearances required.
Debtor's small business chapter 11 plan ("Plan," dkt. 246), request to set hearing on confirmation and related deadlines ("Plan Hearing Request," dkt. 247), and Celtic's Broker Response (regarding employment of real estate
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broker to sell the property instead of pursuing the Plan) (dkt. 254), and the Trustee's Broker Response (dkt. 257)
Deny the Plan Hearing Request, without prejudice. Appearances required.
Procedural issues
The tentative ruling is that Debtor's Plan Hearing Request is properly addressed at this Status Conference. True, it has not been specifically set for hearing on 7/28/20, nor has Debtor lodged any proposed order granting that request on an ex parte basis. But the tentative ruling is that this is exactly the type of procedural issue that is properly addressed at this Status Conference, and therefore it is appropriate to reach the merits of the Plan Hearing Request. The tentative ruling is that, for the same reasons, it is appropriate to consider Celtic's Broker Response and the Trustee's Broker Response because they bear on the Plan Hearing Request.
Although the Plan Hearing Request has some merit, the tentative ruling is that the Plan on its face is unconfirmable due to its lack of provision for administrative claims and, alternatively, due to the facially valid claims for default interest and attorney fees
On the one hand, Debtor's proposed Plan appears to have many elements of what might have been required from the outset of this case. Those elements include: (x) a substantial proposed one-time contribution from Debtor's business partner, so as to be able to make "down payments" to secured creditors, (y) additional substantial ongoing contributions, and a projected return to more normal rental income, so as to be able to make ongoing monthly payments, and (z) future potential refinancing(s) to pay off claims.
None of the foregoing is intended to disregard the substantial hurdles to confirming any proposed plan. This Court recognizes those hurdles - but the question is not whether to confirm the Plan today; rather it is whether to set a hearing to address whether or not to confirm the Plan.
On the other hand, there is no point is setting such a hearing if the Plan is unconfirmable on its face. The tentative ruling is that, for at least the following reasons, the Plan cannot be confirmed.
First, as both Celtic Bank and the Subchapter V Trustee point out Debtor's Plan does not set aside an estimated dollar amount for administrative expenses.
Second, as Celtic Bank points out (dkt.254, p.3:6-11), it has a
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substantial claim for pre- and postpetition default interest on its fully matured loan, as well as attorney fees. In general, claims for both prepetition and "pendency" default interest on oversecured claims are allowed in bankruptcy cases, as are attorney fees, up to the value of the collateral. So any debtor either has to take steps quickly to stop the running of that interest - such as a section 363 sale, a refinance, or a confirmable plan - or else that debtor has to pay that interest in full (up to the value of the collateral). See generally In re Aarons (Case 2:19-bk-18316-NB), dkt. 268, pp.9:13-10:8.
The tentative ruling is that the Plan must, but does not, provide for payment of administrative expenses and Celtic's default interest and attorney fees. Nor does the Plan or any other filed document known to this Court provide a basis for this Court to presume that the very large proposed contributions would be increased by enough to cover the shortfall. Therefore, the tentative ruling is that it would be a waste of time and resources to set a hearing on confirmation of Debtor's proposed Plan at this time, so the Plan Hearing Request must be denied.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: dkt. 246, 247
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
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Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Case progress
At the last hearing on 6/5/20, this Court removed debtor as debtor in possession and expanded the powers and duties of the Subchapter V Trustee (see dkt. 232). There is no tentative ruling, but the parties should be prepared to update this Court on any progress that has occurred since the last hearing.
The parties also should be prepared to address whether this Court should set a new deadline for Debtor to file an amended disclosure statement and amended plan at this time.
Motion for relief from stay by Mr. Tremblay as trustee (as amended, dkt. 93), debtor's supplemental declaration (dkt. 129), previously-filed papers (see tentative ruling for 3/3/20, reproduced at calendar no. 10, 6/16/20 at 1:00 p.m)
The tentative ruling is to take this motion off calendar, without prejudice to filing any amended motion for relief from the automatic stay in future. The reasons are as follows.
At prior hearings this Court was persuaded to continue this matter. As for Debtor's alleged bad faith, the tentative ruling is that any bad faith by Debtor herself is no longer sufficient cause for relief from the automatic stay because this Court has removed Debtor as a debtor in possession - although, if Debtor were to fail to cooperate with the Subchapter V Trustee, or otherwise fail to comply with her ongoing duties, that might change. As for valuation of the property, the tentative ruling is that it is premature to address that issue, until the Subchapter V Trustee has had an opportunity to explore options for
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dealing with the property and negotiating with creditors.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 181
Please see the tentative ruling for the status conference (Calendar no. 6, 7/28/20 at 1:00 p.m. ).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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4/21/20, 6/30/20
Docket 42
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
A.O.E. Law & Associates' second interim fee application, and supporting declaration (dkt. 181, 188, collectively, the "Fee Application"), no opposition is on file
The tentative ruling is to grant the Fee Application in part, and authorized a reduced fee award of $10,206.61 ($9,940 in fees and $266.61 in expenses), but deny Applicant's request for $1,960 in fees consisting of:
$1,015 in fees incurred drafting the "Motion to Amend the Order Determining Value of Collateral in Debtors' Bankruptcy Case" (dkt. 167) [2.9 hours at $350/hr = $1,015] and
$945 in fees incurred drafting the "Second Motion for Order Determining Value of Collateral" (dkt. 172) [2.7 hours at $350/hr = $945].
Reasons: These fees appear to be duplicative of the $630 in fees Applicant has already received (dkt. 126, pdf p. 8:19-9:3) for time spent drafting and filing the original Motion for Order Determining Value (dkt. 95, the
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"Original Valuation Motion"). Applicant has not provided an adequate explanation for why the estate should bear the cost of Applicant's efforts to remedy the issues created by Applicant's failure to properly serve the Original Valuation Motion.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Valuation issues
Debtor and Mission Hen, LLC ("Mission Hen") have a pending dispute about valuation of certain property. See dkt.172, 187. The tentative ruling is to direct the parties to meet and confer about how they seek to resolve their valuation disputes: e.g., (i) with an evidentiary hearing (see the sample order regarding video hearings, posted on Judge Bason's portion of this Court's website, at www.cacb.uscourts.gov); (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or
(iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: TBD, after the pending valuation issues are resolved.
Continued status conference: 8/4/20 at 1:00 p.m, concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154), Order setting combined hearing on (1) disclosure statement approval and (2) plan confirmation, and related deadlines (dkt. 159), proof of service of voting package (dkt 166), Mission's objection (dkt. 169), no reply or ballot summary is on file
The tentative ruling is to continue this matter concurrent with the continued status conference (section 2(d) below) and Debtors' second motion for order determining value of collateral (dkt. 172, 173), because the outcome of the that motion could affect whether Debtors' amended plan is confirmable. This Court anticipates setting revised deadlines for the submission of Debtors' reply in support of confirmation and a ballot summary at the continued hearing.
(c) Outdated vehicle insurance policy
Debtors' May monthly operating report ("MOR") reflects that Debtors' vehicle insurance policy with Alliance United Insurance expired on 2/8/20 (dkt. 171, pdf p. 8). Debtors are directed to file an amended MOR by 7/7/20 with updated insurance coverage information.
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Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*:
Continued status conference: 8/4/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
UST's motion to dismiss case (dkt. 135), Debtors' response (dkt. 147, "MTD") and Stark declaration in support (dkt. 150)
The UST should be prepared to address whether there are any remaining compliance deficiencies.
Amended disclosure statement (dkt. 153, 155) and amended plan
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of reorganization (dkt. 154)
If this Court is persuaded not to grant the MTD, and if the COVID-19 situation has not changed Debtors' situation enough to warrant deferring any consideration of Debtors' current proposed plan, the tentative ruling is to proceed with Debtor's proposed Plan and Disclosure Statement. The tentative ruling is to direct Debtor to make minor corrections (deleting PDF pp. 9 &11 of the Plan, which are blank), and set a deadline of 4/28/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Amended Disclosure Statement and confirmation of the Amended Plan for the same time as the continued status conference (see below).
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above.
Continued status conference: 6/30/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 655
Please see the tentative ruling for the status conference (calendar no. 12, 7/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 657
Please see the tentative ruling for the status conference (calendar no. 12, 7/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 658
Please see the tentative ruling for the status conference (calendar no. 12, 7/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 660
Please see the tentative ruling for the status conference (calendar no. 12, 7/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 663
Please see the tentative ruling for the status conference (calendar no. 12, 7/28/20 at 1:00 p.m.)
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20, 4/21/20,
5/2/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Grobstein Teeple, LLP third and final fee application (dkt.655), Notice of Hearing (dkt.664), Errata (dkt.667) and Declaration of Leslie McNeal in support (dkt.668)
Allow Grobstein Teeple, LLP $59,885.50 in fees and $67.12 in expenses, for a total of $59,952.62. In addition, allow the previously approved interim fees and expenses totaling $204,641.43 on a final basis. The total compensation allowed on a final basis is $264,594.05.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Law Office of Mathew J. Borror final fee application (dkt.657), Notice of Hearing (dkt.664) and Declaration of Leslie McNeal in support (dkt
1:00 PM
668)
Allow the Law Office of Mathew J. Borror the previously approved
interim fees and expenses totaling $59,216.00 on a final basis.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Steven M. Steese, Attorney at Law final fee application (dkt.658), Notice of Hearing (dkt.664) and Declaration of Leslie McNeal in support (dkt.668)
Allow Steven M. Steese, Attorney at Law the previously approved interim fees and expenses totaling $5,095.08 on a final basis.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Ballard, Rosenberg, Golper & Savitt, LLP final fee application (dkt.660), Notice of Hearing (dkt.664) and Declaration of Leslie McNeal in support (dkt.668)
Allow Ballard, Rosenberg, Golper & Savitt LLP $232.50 in fees. In addition, allow the previously approved interim fees and expenses totaling
$8,497.00 on a final basis. The total compensation allowed on a final basis is
$8,729.50.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Margulies Faith, LLP fourth and final fee application (dkt.663), Notice of Hearing (dkt.664) and Declaration of Leslie McNeal in support (dkt.668)
Allow Margulies Faith, LLP $194,758.00 in fees and $3,944.79 in expenses, for a total of $198,692.79. In addition, allow the previously approved interim fees and expenses totaling $985,799.94 on a final basis. The total compensation allowed on a final basis is $1,184,492.63.
Debtor's counsel is directed to address how much additional time counsel anticipates billing for the preparation, filing, serving, and prosecution of this fee application. See dkt.663, p.3:6-7.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
1:00 PM
Deadlines/dates. This case was filed on 2/20/19. A Plan (dkt.562) was confirmed on 5/15/20 (dkt.630). A post-confirmation status conference presently is set for 8/4/20 at 1:00 p.m., and Debtor's status report (dkt.669) requests a continuance of approximately 90 days. The tentative ruling is to grant that continuance as set a new date of 11/10/20 at 1:00 p.m., with a brief status report due 10/27/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 1
Tentative Ruling for 7/28/20:
Continue to 10/27/20 at 1:00 p.m. pursuant to Debtors' status report (dkt.159) and the parties' stipulations and orders thereon for a standstill pending approval of settlement between the jointly administered Debtors and Elegant (dkt. 149-152).
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Adv#: 2:20-01131 Chan et al v. Le Elegant Bath, Inc.
Pursuant to 11 U.S.C. Section 551; and (4) Disallowance of Claim Pursuant to 11 U.S.C. Section 502(d)
Docket 1
Continue to 10/27/20 at 1:00 p.m., concurrent with other matters, pursuant to the parties' stipulation and order for standstill pending approval of settlement (main case dkt. 149, 152). The parties are directed to file a joint status report two weeks before the continued hearing.
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Defendant(s):
Le Elegant Bath, Inc. Pro Se
Plaintiff(s):
Anthony Chan Represented By Beth Gaschen
AC YU Holding, LLC Represented By Beth Gaschen
A Touch of Brass Inc. Represented By Beth Gaschen
1:00 PM
Docket 1
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's disclosure statement (dkt. 83) and plan (dkt. 82), PHH Mortgage Corporation’s limited objection (dkt. 91)
The tentative ruling is that if Debtor can satisfactorily address the issues set forth below, this Court will set a deadline of 8/7/20 for Debtor to file a further amended Plan and amended D/S to correct these issues and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the D/S and confirmation of the Plan for the same time as the continued status conference (see below). The tentative ruling is also to sustain PHH Mortgage's limited objection and required Debtor to attach the parties' plan treatment stipulation to the plan and incorporate its provisions by reference.
Debtor’s projected income is inconsistent with Debtor’s actual monthly income
Debtor's projected personal income from employment is $4,314.46
1:00 PM
(dkt. 83, Ex. 1), but Debtor's June Monthly Operating Report ("MOR") only reflects $2,824.16 in net monthly income from Vons (dkt. 92, p.1, line 4). Debtor's Amended Schedule I lists income from a second job at "City of Pomona" which provided Debtor with an additional $1,750.99 in monthly income (dkt. 28, p.5, line 8h). Debtor should be prepared to address whether she is still receiving income from the City of Pomona and what impact any loss in income from that source has on Debtor's plan projections and/or the feasibility of the Plan.
Overly inflated projected expenses
Debtor's projected monthly expenses includes a line item for $500 for "Cable/Internet" (dkt. 83, Ex.1), which appears to be excessive and is significantly higher than the $200 figure this Court authorized in Debtor's Budget Motion (dkt. 57, p. 7). Debtor should be prepared to address why this expense is projected to be so much higher and whether it is appropriate for her to spend that much on cable and internet each month when that money could be used to increase distributions to creditors.
Outstanding UST fees
Debtor’s June MOR reflects that UST fees for Q2 are outstanding in the amount of $325 (dkt. 92, p.11). Debtor is cautioned that failure to pay these fees by the payment deadline may result in adverse consequences.
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: see above
Continued status conference: 9/29/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
1:00 PM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget and Employment motions
As of the preparation of this tentative ruling, Debtor has not filed an employment application or a budget motion as required by Judge Bason's posted procedures (available at www.cacb.uscourts.gov). If these papers are not on file by the hearing date, the tentative ruling is to set a deadline of 8/4/20 to file those motions.
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a
1:00 PM
deadline and procedures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/13/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash management motion (dkt. 14), order setting hearing on shortened time (dkt. 13)
There is no tentative ruling.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
1:00 PM
Bar date: TBD
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/28/20 at 1:00 p.m., status report due 7/14/20 on form(s) required by the Procedures Order. As
stated in the Procedures Order, Debtor is required to personally appear (telephonically) at the status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
fr. 6/16/20
Docket 123
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 1
Tentative Ruling for 7/28/20:
Continue as set forth below. Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has no issues to raise sua sponte. This Court had intended, at the continued status conference (see below), to address whether any party in interest had filed an alternate plan or whether to dismiss or convert this case; but meanwhile Debtor has filed its own motion (dkt.155) to convert this case to chapter 7. If for some reason this case is not converted, the status conference will be held and this Court will address those issues; but if this case is converted then the continued status conference will go off calendar.
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: N/A.
1:00 PM
Continued status conference: 9/29/20 at 1:00 p.m., to go off
calendar if this case is converted to chapter 7. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required by counsel for the Debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Outdated mailing address?
Debtor's petition designated 525 E. Colorado Blvd., Pasadena, CA 91101 (the "Colorado Blvd Address") as its address for purposes of service (dkt. 1). But Debtor subsequently rejected its sublease of certain premises located at the Colorado Blvd Address (dkt. 90, 92). As a result, it is not clear if Debtor has been receiving personal service of this Court's orders and/or papers filed in this case. By no later than 6/19/20 Debtor is directed to amend its address to ensure it is receiving notice of all papers and proceedings in this case.
1:00 PM
Debtor's motion to extend exclusivity periods (dkt. 112, 113, 117,
the "Exclusivity Motion"), untimely opposition of Christopher Becker ("Mr. Becker") (dkt. 127), order setting hearing on Exclusivity Motion (dkt. 129), Debtor's reply (dkt. 136), Mr. Becker's unauthorized sur-reply (dkt. 137)
The tentative ruling is to deny the motion. On the one hand, Mr.
Becker's opposition was not timely filed and served, and he offers no excuse for that untimeliness in his opposition papers. In addition, this Court recognizes the challenges presented by COVID19, and by the restaurant and cooking school businesses generally, all of which make it understandable that it would take more time than usual for Debtor to propose a chapter 11 plan.
On the other hand, even disregarding Mr. Becker's papers, this Court takes note of Debtor's representations that this case is administratively insolvent (dkt. 95, p.3:18-19), that Debtor does not anticipate that its business operations will resume (dkt. 123, p. 9:13-14), and that Best Rich no longer appears to be willing to purchase Debtor's business or continue to fund ongoing operations (id., p. 9:14-18). Considering these matters, and all other relevant facts and circumstances reflected in prior hearings and on the docket, the tentative ruling is that Debtor has not established sufficient cause to extend exclusivity, and to the contrary creditors would be better served by allowing exclusivity to terminate and permitting creditors an opportunity to propose a viable plan.
Weintraub & Selth, APC's fee application (dkt. 123, 124), declaration of Shaojing (Ewen) Xu in support of fee application (dkt. 132), MAC LBNA, LLC's ("MAC") limited opposition (dkt. 128), Debtor's reply (dkt. 135)
The tentative ruling is to approve Weintraub & Selth's request for fees in the amount of $110,208.12 and expenses in the amount of $1,925.16, for a total award of $112,133.28. As for the request for immediate payment, the tentative ruling is that on the legal issue Weintraub & Selth is correct that if funds are contributed to a debtor and are earmarked for payment to a professional then other administrative claimants such as MAC do not have a right to those funds. But the tentative ruling is that the declarations in support of such contribution and earmarking are too vague (and, as of the preparation of this tentative ruling, one is unsigned). When was the alleged earmarking agreement entered into? Is it in writing? Does the history of equity contributions to Debtor and Debtor's use of the funds suggest that the funds
1:00 PM
were to be used for all bankruptcy purposes or were earmarked for specific purposes?
The tentative ruling is to set a continued hearing, contemporaneous with the continued status conference (see part "(2)" of this tentative ruling, below). The tentative ruling is to set a deadline of two weeks prior to that continued hearing to file and serve any supplemental papers in support of payment out of such funds, and a deadline of one week prior for any supplemental opposition papers.
Proposed orders: Debtor is directed to lodge proposed orders - (i) one order terminating exclusivity and (ii) a second order allowing the requested fees and expenses but setting a continued hearing on payment out of the alleged earmarked funds - via LOU within 7 days after the hearing date and attach a copy of the relevant portion of this tentative ruling to each order, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 1/15/20.
Bar date: 4/7/20 (dkt. 52, timely served, dkt. 59).
Procedures order: dkt. 5 (timely served, dkt. 11, 18).
Plan/Disclosure Statement*: The 5/15/20 deadline previously set at the last status conference is vacated based on Debtor's representations in its status report (dkt. 80).
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
1:00 PM
Docket 124
Please see the tentative ruling for the status conference (calendar no. 20, 6/30/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20, 5/5/20, 6/30/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances required by counsel for Debtor and for Aztec.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's First Amended Chapter 11 Plan (the "Plan," dkt. 138) and First Amended Chapter 11 Disclosure Statement (the "Disclosure Statement," dkt. 139), Objection filed by Rehabbers Financial, Inc. DBA Aztec Financial ("Aztec") (dkt. 164), Debtor's errata to Disclosure Statement (dkt. 166), Debtor's reply (dkt. 167) and Debtor's request for judicial notice (dkt. 168); ballot summary (dkt.173)
There is no tentative ruling except that (i) per this Court's order setting a hearing on plan treatment (dkt.171) it appears that the terms of Debtors' stipulation with Citimortgage, Inc. cannot be approved, or incorporated into the Plan, without notice to creditors and an opportunity to be heard; and (ii) the parties are directed to address that issue and the issues raised in Aztec's opposition (dkt. 164) and Debtor's reply (dkt. 167).
Deadlines/dates. This case was filed on 11/11/19.
Bar date: 3/16/20 (order, dkt. 39, timely served, dkt.42).
1:00 PM
Procedures order: dkt. 8 (timely served, dkt. 29)
Plan/Disclosure Statement*: See above
Continued status conference: 9/1/20 at 1:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
2:00 PM
Docket 1207
Please see the tentative ruling for the status conference (calendar no. 2, 7/28/20 at 2:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20, 5/19/20, 7/14/20
BOBS, LLC
vs DEBTOR
Docket 936
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the status conference (calendar no. 2, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 11/21/19:
Please see the tentative ruling for the status conference (calendar no. 3, 11/21/19 at 2:00 p.m.)
Tentative Ruling for 10/1/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) a proposed timeline, and sequence, for discovery and court proceedings regarding the value of the Paramour and whether Bobs,
LLC's second loan is secured or unsecured, and (2) whether this Court should set an evidentiary hearing regarding the value of the Paramour, or whether other procedures are appropriate, such as using a third party appraiser, selected jointly by the parties' own appraisers, who would be either appointed as this Court's own expert witness to assist this Court in assesing the parties' appraisals and testimony of their appraisers, or, alternatively, whose determination would be binding. See Motion (dkt.936), Opposition papers (dkt.948, 949, 950, 951, 952), and Reply papers (dkt.958, 959).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20, 7/14/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion For Order Approving Plan Treatment Stipulation (dkt. 1207) Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Bobs LLC Motion For Relief From The Automatic Stay (dkt. 936)
Continue to the same date and time as the continued status conference.
Deadlines/dates.
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This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 8/4/20 at 1:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
ESTATE OF MAYNARD POYNTER
vs DEBTOR
Docket 144
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay
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remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance
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carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors
weigh in favor of granting relief as set forth above. Most significantly, Debtor does not oppose the requested relief. The non-bankruptcy action involves third parties not subject to suit in bankruptcy court (dkt. 144, pp.7&10) and the claims arise under non-bankruptcy law (id. at p.3). Therefore, it serves the interest of judicial economy for the Superior Court of California to hear this action, which will result in complete resolution of the dispute between the parties and will not interfere with the bankruptcy case. Lastly, Movants state that they seek to recover primarily from third parties. Id. at p.7.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
Movant(s):
Estate of Maynard Poynter Represented By Christopher L Blank
2:00 PM
Docket 31
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Patricia Poynter et al. motion for relief from the automatic stay, action in nonbankruptcy forum (dkt. 31)
Grant as set forth in calendar no. 3, 7/28/20 at 2:00 p.m. Appearances are not required.
Debtor's exit strategy
In a status report dated 6/26/20, Debtor stated its intent to confer with creditors about pursuing a plan of liquidation or a structured dismissal.
Dkt.142. Debtor is directed to address the status of those efforts.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
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Plan/Disclosure Statement*: TBD
Continued status conference: 9/1/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20, 5/19/20,
6/30/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Plan (dkt.158) and Disclosure Statement (dkt.159), supporting declaration (dkt.160), and request to set hearing (dkt.162)
Debtor used the wrong forms.
As noted in the tentative ruling for 6/30/20 (reproduced below), the Posted Procedures of Judge Bason ("Procedures") require use of local forms F 3018-1.CH11.PLAN, F 3017-1.CH11.DISCLSR.STMT, and F
3018-1.CH11.PLAN.DS.EXHIBITS, unless otherwise ordered. Instead, Debtor has used forms F 2081-1 (plan, and disclosure statement). The tentative ruling is to excuse the use of the wrong forms, with a warning not to use the wrong forms in future cases.
Stop serving creditors - until authorized
Debtor may have confused creditors by sending them the Plan and Disclosure Statement. In general, a debtor is not supposed to serve all
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parties in interest with any disclosure-statement-related documents (before a disclosure statement is approved). See 11 U.S.C. 1125(b) and Rules 2002(b) & 3017(a) (Fed. R. Bankr. P.) and Tentative Ruling for 6/30/20 (reproduced below) part (2)(b). In addition, as set forth in the Posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) (the "Procedures"), the required procedure is for this Court to conduct a preliminary review at a status conference, conditionally approve the disclosure statement, and only then direct service on all parties in interest, as authorizied by 11 U.S.C. 105(d)(2) (vi). In future, counsel is directed to follow the Procedures.
Gating issue(s) regarding Plan and Disclosure Statement The tentative ruling is that it is appropriate to address any gating
issues at this point, before authorizing Debtor to serve ballots and the rest of the voting package on creditors. This Court is aware of one gating issue: it appears that, although Debtor the linchpin of the Plan is to sell the Honolulu Terrace property, there is no commitment in the Plan not to withdraw the listing of that property, and no deadline to sell the property. Meanwhile creditors are promised only $500 per month (or possibly more, if Debtor has sufficient future income). If Debtor does not amend the Plan to address these issues, can he satisfy 11 U.S.C. 1129(a)(3), (a)(7), and any other applicable provisions of the Bankruptcy Code?
Combined hearing
The tentative ruling is, if Debtor sufficiently addresses the foregoing issues, to set a deadline of 7/31/20 for Debtor to file "blacklined" versions of the Disclosure Statement and Plan (if changes are agreed or ordered to each of those documents) and for Debtor to lodge a proposed order - in the form posted on Judge Bason's portion of this Court's website - approving the disclosure statement on an interim basis, authorizing service of the voting package on all creditors, and setting a hearing, contemporaneous with the continued status conference (see below), to consider final approval of the Disclosure Statement and confirmation of the Plan.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: See above.
Continued status conference: 9/1/20 at 2:00 p.m. No written status report is required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
(a) Cash collateral motion (dkt.13, 19, 26, 31, 32, 42, 43, 55, 61, 75,
86, 101, 113, 141)
The tentative ruling is to modify the authority to use cash collateral generated by 10838-10842 Beverly Boulevard so as to restrict any authorization only to payment of real estate taxes, insurance, and other expenses necessary to maintain these properties, based on relief from the automatic stay being granted (dkt. 150).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
May Monthly Operating Report ("MOR," dkt. 153)
The MOR reflects that insurance premiums for the Audi are paid through 6/24/20. Debtor is directed to address whether continued insurance
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coverage has been purchased.
Status Report (dkt.154)
Debtor is encouraged to keep status reports very brief. Judge Bason prefers that status reports not repeat what is on the docket.
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan*: 7/15/20. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
fr. 03/10/20, 05/19/20, 06/30/20
Docket 270
Please see the tentative ruling for the status conference (Calendar no. 7, 7/28/20 at 2:00 p.m.).
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 270
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Debtor's brief re liability of Nationstar Mortgage, LLC for damages for contempt (violation of discharge injunction) (dkt. 320), Nationstar's opposition (dkt. 321), Debtor's reply (dkt. 322)
Scope of remand
The tentative ruling is that the parties should be prepared to address whether (i) there is any dispute that the Bankruptcy Appellate Panel ("BAP") determined that the actual meaning of the confirmed chapter 13 plan and the confirmation order was to reduce the amount of the debt secured by Nationstar's lien, such that when that debt was paid the lien automatically became void, and (ii) the BAP remanded the matter to this Court to address whether Nationstar's understanding of whether the discharge injunction applied was or was not objectively reasonable, and thus whether Nationstar is subject to contempt sanctions.
No further evidence regarding whether Nationstar is subject to contempt sanctions; but further evidence might be appropriate on other issues
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The tentative ruling is also that, because the record for this matter was closed when this Court took the matter under submission, prior to the appeal to the BAP, therefore no further evidence is appropriate regarding whether Nationstar is subject to contempt sanctions. But, if it is subject to sanctions, then the tentative ruling is that further evidence and an evidentiary hearing may be appropriate regarding the dollar amount of any compensatory damages and any other damages or sanctions. Those issues can be addressed at a future hearing, if appropriate, and meanwhile the tentative ruling is that the scope of this hearing is limited to whether Nationstar is subject to contempt sanctions.
Merits
There is no tentative ruling on the merits of that question. This Court has reviewed the parties' briefs, and the parties are invited to make brief oral arguments, following which this Court anticipates taking the matter under submission, and setting a continued hearing date of 8/18/20 at 2:00 p.m. at which the parties and this Court can address next steps in view of whatever Memorandum Decision this Court issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's Order Setting Status Conference (dkt. 297).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 4
Please see the tentative ruling for the adversary status conference (Calendar no. 9, 7/28/20 at 2:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
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Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Slander of Title; 3) Unfair Business Practices; 4) Elder Financial Abuse; 5) Violation of FCRA; 6) Accounting; 7) Declaratory Relief fr. 6/2/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
The tentative ruling is to grant the MTD (apart from the issue of
whether or not to grant leave to amend) on the grounds that it is law of the case that this Court has already ruled in connection with Debtor's motion to void lien filed in the main case that all of the grounds asserted in the MTD are persuasive. See 2:20-bk-12732-NB, dkt. 94.
Alternatively, even if it were not law of the case, this Court is still persuaded that on the merits, all of the arguments asserted in the MTD are persuasive.
Alternatively, and in addition, as of the preparation of this tentative ruling Debtor has not filed an opposition to the MTD, so any arguments in
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opposition to dismissal of this proceeding are deemed waived and forfeited.
Whether to grant leave to amend
The tentative ruling is to continue the hearing on the MTD, solely with respect to whether this Court should grant leave to amend, so as to be concurrent with the hearing on Plaintiff/Debtor's motion for leave to amend (dkt.20), which is set for hearing on 8/4/20 at 11:00 a.m. The tentative ruling is that no written order is required until this Court has ruled on that remaining issue.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 3/21/20. Pursuant
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to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: N/A deadline. Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 8/4/20 at 11:00 a.m., concurrent with other matters.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Continue to 6/16/20 at 2:00 p.m., concurrent with the hearing on Defendant's motion to dismiss. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
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appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
Defendant(s):
U.S. BANK NATIONAL Pro Se
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
2:00 PM
Docket 6
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion (dkt. 83), orders setting hearing on budget motion (dkt. 103) and continuing hearing (dkt. 105), Amended budget motion (dkt. 118) and supplemental declaration (dkt. 120)
There is no tentative ruling. The parties are directed to address whether the amended budget should be approved.
Monthly Operating Reports ("MORs")
On 6/22/20 the Clerk's Office issued notices directing Debtor to re-file April and May MORs, but as of the preparation of this tentative ruling, Debtor has not complied. Why not?
Additionally, based on this Court's comparison of Debtor's signature in docket 83, page 2, with the MORS, it is unclear whether Debtor is personally signing her MORs or if someone else is signing on her behalf. Debtor should be prepared to address this issue.
Deadlines/dates. This case was filed on 3/9/20.
2:00 PM
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/1/20 at 1:00 p.m. Brief status
report due 8/18/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
2:00 PM
fr. 6/16/20
Docket 83
Please see the tentative ruling for the status conference (Calendar no. 11, 7/28/20 at 2:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
2:00 PM
Docket 62
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the status conference (calendar no. 13, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the status conference (calendar no. 3, 7/14/20 at 1:00 p.m.)
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20
Docket 1
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Dispute under the stipulation for use of cash collateral and adequate protection (the "Stipulation," dkt. 62)
This Court's ruling from the 7/14/20 hearing directed Debtor to stop payment on the outstanding missing check(s) and make the required adequate protection order payments via overnight mail to Mr. Ellis by 7/17/20.
The parties are directed to address the status of those efforts.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: 8/14/20. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m. No status report required.
2:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
First interim fee application of Debtor's counsel (the "Fee Application," dkt. 140)
Approve $28,315.00 in fees, and $3,020.20 in expenses, for a total of
$31,335.20.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Disputed under the stipulation for use of cash collateral and adequate protection (the "Stipulation," dkt. 62)
On 3/9/20, this Court issued an order (dkt. 64) approving the Stipulation. On 6/24/20, the Internal Revenue Service ("IRS") filed a declaration of default under the Stipulation (dkt. 144) and lodged a proposed order prohibiting the use of cash collateral (see dkt. 145). On 6/25/20, Debtor
2:00 PM
filed his opposition (dkt. 146) to the declaration of default. On 7/2/20, this Court issued an order setting this dispute for hearing (dkt. 147).
There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's order (dkt. 147), which are reproduced herein:
... Debtor is directed to address (i) how the allegedly lost May 12, 2020 payment was made (money order, personal check etc.), (ii) whether Debtor can stop and has stopped payment on that lost payment, and (iii) whether Debtor has taken steps to provide a substitute payment to the IRS. See dkt. 146, p.2:7-11 & Ex. 1.
... the IRS is directed to address what steps have been taken to locate the allegedly lost payment.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: 8/14/20. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required by counsel for the debtor.
2:00 PM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including the March MOR (dkt. 121) and latest filed Status Report (dkt. 132).
Debtor's counsel should be prepared to propose a deadline for any objections to claims, and to file a Plan and Disclosure Statement. See dkt. 132, p.3:3-4.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: see above. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 7/28/20 at 2:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
2:00 PM
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
2:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 7/14/20
Docket 11
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
2:00 PM
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
Gilbert Martinez Represented By James A Judge
Ofelia Argaez de Chuc Represented By James A Judge
2:00 PM
fr. 7/14/20
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
7/14/20
Docket 43
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 18, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 7/14/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
2:00 PM
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
2:00 PM
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
non debtor Aston Business Solutions, Inc. fr. 7/14/20
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20, 7/14/20
Docket 332
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
7/14/20 hearing
The parties are directed to address why the did not appear at the 7/14/20 hearing, as required by this Court's tentative ruling (reproduced below).
Settlement related matters
The parties are directed to address (i) the status of their settlement efforts, and (ii) whether they have met and conferred re lodging proposed orders to take off calendar any future hearings that are mooted by this Court's order substantively consolidating Aston Business Solutions with Attitude
2:00 PM
Marketing. AttitudeCase, dkt.157; see also MacCase, dkt.501.
The Trustee is directed to address the status of his efforts to implement the Agreement For Settlement Of Claims And Substantive Consolidation approved by this Court. See AttitudeCase dkt.148&154; see also MacCase, dkt.495&500.
Dates/deadlines
After addressing the foregoing issues, the tentative ruling is to continue the status conferences on calendar for today to 8/18/20 at 2:00 p.m., to be heard concurrently with the continued pretrial conferences (see Wynd-Mac- Adv., dkt.194).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
7/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By
2:00 PM
James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 7/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
2:00 PM
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
1:00 PM
Docket 56
Tentative Ruling for 7/28/20:
Continue as set forth below. Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues N/A
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 11/2/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/1/20 at 1:00 p.m, brief status report due 8/25/20.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor is directed to address whether she is in fully compliance with United States Trustee's requirements. See dkt. 75, pp. 2&15. Debtor is reminded that, as she acknowledges (id.), she may have to file a motion for use of cash collateral and a revised budget motion when she restrarts her business(es), including full disclosure of the gross revenues, expenses, and calculation of net income from each business (see dkt.80, p.2).
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 11/2/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
1:00 PM
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Migan Murray Represented By Andrew Moher
10:00 AM
Hrg re: Motion for relief from stay [RP] DEUTSCHE BANK NATIONAL TRUST CO
vs
DEBTOR
Docket 27
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
10:00 AM
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Laura Ann Zitouni Represented By Erika Luna
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 34
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
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analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Hilda Araceli Barrera Represented By Peter M Lively
Movant(s):
Deutsche Bank National Trust Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NA
vs DEBTOR
Docket 37
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's response (dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aquita Winslow Represented By Elena Steers
10:00 AM
Movant(s):
HSBC BANK USA, N.A Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 36
- NONE LISTED -
Debtor(s):
Harold Federick Link Represented By Bert Briones
Joint Debtor(s):
Sarah Angelica Link Represented By Bert Briones
Movant(s):
Deutsche Bank National Trust Represented By Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 10
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jorge Munoz Represented By
Michael D Luppi
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 9
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Candice Latreece Wade Represented By Daniel King
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Robert Samson Fear Represented By Onyinye N Anyama
Movant(s):
Robert Samson Fear Represented By Onyinye N Anyama
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the motion papers (dkt. 12), the opposition papers (dkt. 18, 19, 23) filed by BVV Profit Sharing Plan ("BVV"), Debtor’s reply (dkt. 20), and other filed documents.
Overview
The tentative ruling is that one strong statutory policy in favor of imposing the automatic stay, embodied in the statute, is to protect creditors (not just the debtor). For example, the automatic stay prevents one or more creditors from levying on assets before other creditors can discover and levy on those assets.
Although there is a statutory presumption that Debtor did not file this case in good faith, which Debtor can only rebut by clear and convincing evidence, the tentative ruling is that at this early stage of the current case, the documents filed by Debtor so far appear to reflect proper prosecution of this current case and the potential, with appropriate safeguards, to provide appropriate treatment for BVV and other creditors. Therefore, the tentative ruling is that, if Debtor consents to, and/or if this Court imposes, a "stay-
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current" adequate protection order as set forth below, Debtor will have established "good faith" within the narrow meaning of 11 U.S.C. 362(c)(3).
Governing law
The test for "good faith" under 11 U.S.C. 362(c)(3) is not entirely clear.
Compare, e.g., In re Villaneuva, 274 B.R. 836, 841 (9th Cir. BAP 2002) ("good faith" for plan confirmation purposes), with, e.g., In re Elliot-Cook, 357
B.R. 811, 815 (Bankr. N.D. Cal. 2006) ("good faith" for purposes of section 362(c)(3)); In re Ferguson, 376 B.R. 109 (Bankr. E.D. Pa. 2009) (same). In general, the main considerations appear to be why the prior case failed, and what facts and circumstances suggest a different outcome in this case. See Elliot-Cook, 357 B.R. at 815.
By way of analogy, this Court notes that, in determining whether or not to dismiss a bankruptcy case for lack of good faith, there is authority that courts must consider the totality of the circumstances. See In re Montoya, 342 B.R. 312, 317 (Bankr. S.D. Cal. 2006). Some considerations in assessing the totality of the circumstances include (but are not limited to): "1) whether debtor misrepresented facts in the petition or the plan, unfairly manipulated the Code or otherwise filed the current chapter 13 plan or petition in an inequitable manner; 2) debtor's history of filings and dismissals;
whether debtor only intended to defeat state court litigation; and 4) whether egregious behavior is present." Montoya, 342 B.R. at 317 (citing In re Leavitt, 171 F.3d 1219, 1224 (9th Cir. 1999)). See also Elliot-Cook, 357 B.R. 811, 814-15 (similar considerations).
An additional circumstance, as explained above, is to consider how the application of the automatic stay may protect creditors from one another.
This can foster equality of distribution while preventing a potentially destructive, "winner take all" race to collect.
Another analogy is to subsection (d) of section 362. The tentative ruling is that proceedings under section 362(c), like those under section 362(d), are intended to be "summary proceedings" rather a full trial. Among other things, a full trial at the inception of the case would defeat the purpose of the "breathing spell" that is one of the purposes of the automatic stay, and that would harm both debtors and creditors. Cf. In re Veal, 450 B.R. 897, 914 (9th Cir. BAP 2011) (citing authority that hearings under section 362(d) are "summary" proceedings); In re Robbins, 310 B.R. 626, 631 (9th Cir. BAP 2004) ("relief from stay hearings are limited in scope ... do not involve a full
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adjudication on the merits ..." and adjudicate claims only to the extent of determining "whether a creditor has a colorable claim") (citations omitted).
Similarly, because of the expedited time frame under section 362(c)(3), the limited issues to be decided, and the fact that the merits of any underlying disputes are not fully adjudicated, the tentative ruling is that any determination of "good faith" for purposes of section 362(c)(3) has very limited if any claim or issue preclusive effect. The tentative ruling is also that any party opposing the good faith determination need only show a "colorable" basis to establish that it has standing and is the real party in interest who has a right to be heard in opposition to any good faith determination. Cf. Veal, 450 B.R. 897, 914-15 ("stay relief litigation has very limited claim preclusion effect" and "[g]iven the limited nature of the relief obtained through a motion for relief from the stay, the expedited hearing schedule § 362(e) provides, and because final adjudication of the parties' rights and liabilities is yet to occur, ... a party seeking stay relief need only establish that it has a colorable claim to enforce a right against property of the estate.") (citations omitted); and see generally In re M Capital Corp., 290 B.R. 743 (9th Cir. BAP 2003) (limitations on "good faith" findings when all facts and circumstances might not be established, in analogous context of 11 U.S.C. 363(m)).
To be clear, the tests for "good faith" under paragraphs (c)(3) and (c)
(4) of section 362 are not the same as the tests of "good faith" for purposes of whether to dismiss a case, nor is the test under section 362(c)(3) or (4) the same as the test for determining whether to grant relief from the automatic stay under section 362(d). In all of these instances, the analysis may be informed by similar considerations, but there are differences.
For example, if a debtor proposes a plausible attempt to provide adequate protection, or a plausible outline of a possible financial reorganization, that may establish or go a long way toward establishing "good faith" under subsection (c) of section 362, even if the proposed protection of the creditor's interest turns out not to be "adequate" (11 U.S.C. 362(d)(1)) or if the debtor ultimately is unable to show that property is necessary to an "effective" reorganization (section 362(d)(2)(B)). The point is only that there are parallels in the analysis under subsections (c) and (d) of section 362 as well as the reported decisions involving dismissal of cases for lack of "good faith," and the tentative ruling is that each type of analysis of "good faith" informs the others.
Based on the foregoing, the tentative ruling is to consider the totality of
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the circumstances, in a summary proceeding, with all parties in interest being heard, and with very limited if any preclusive effect on the "good faith" issue in any other contexts (although the same underlying evidence might be relevant in other contexts). With this framework, this Court turns to the merits.
(3) The tentative ruling is that Debtor will have rebutted the presumption of a lack of good faith, by clear and convincing evidence, if certain conditions are imposed
The tentative ruling is that (a) there is nothing in the record for this Court to conclude that Debtor has misrepresented facts in her petition or plan, unfairly manipulated the Code or otherwise filed the current chapter 13 plan or petition in an inequitable manner, (b) Debtor successfully confirmed a plan in her prior case and made approximately $67,130.77 in plan payments prior to dismissal (dkt. 12, p.5, para. 4(a)(1)(B)), (c) this Court is not aware of any state court litigation motivating this bankruptcy filing, (d) Debtor’s current plan proposes to pay creditors 100% of their claims (dkt. 2), (e) continuing the automatic stay in this case is in the best interest of creditors because the evidence is that Debtor has approximately $441,705.60 in equity in the property, which serves both to protect creditors and to motivate Debtor to pay creditors if this case remains in chapter 13, but much of that equity might be lost or consumed by costs of foreclosure or administration if this case were dismissed or converted to chapter 7, (f) the evidence is that BVV’s claim is adequately protected by an approximate 37% equity cushion, and (g) Debtor has provided a persuasive explanation why her circumstances have changed since her prior case. In these circumstances, the tentative ruling is that Debtor will have established "good faith" within the meaning of section 362(c)
if she agrees to a standard "stay current" adequate protection stipulation with BVV (14 days' notice of any missed payment, during which time Debtor can cure; with a maximum of three such cures). Alternatively, the tentative ruling is that this Court can impose such requirements as a condition of modification of the automatic stay.
Evidentiary objections
The tentative ruling is that BVV’s evidentiary objections (dkt. 19, 23), although somewhat persuasive, ultimately go to the weight rather than the admissibility of Debtor's evidence. For example, it is true that Debtor has not provided documentation showing the dollar amounts and timing of her alleged
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expenditures for family purposes, including expenses associated with her brother's demise. But, first, the tentative ruling is that the other considerations listed above are more significant in terms of good faith.
Second, although the lack of financial details makes Debtor's evidence of changed circumstances have less weight, the tentative ruling is that she is still competent to testify from her personal knowledge as to her own experiences and actions. Considering the totality of the facts and circumstances, the tentative ruling is that Debtor has shown her good faith by clear and convincing evidence.
Form of order
Based on the foregoing, the tentative ruling is that after the hearing date two separate orders are appropriate: (a) an order continuing the automatic stay (which this Court will prepare), with a copy of this tentative ruling attached) and (b) an APO with BVV, which BVV is directed to prepare.
The tentative ruling is that this Court's order will include the following language:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (A) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, for the reasons set forth in this Court's adopted tentative ruling (attached hereto). (B) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not
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intended to have any binding effect with respect to any future
assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
Movant(s):
Magdalena Avila Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON TRUST COMPANY
vs DEBTOR
Docket 75
Tentative Ruling for 8/4/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the
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automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal, such dismissal could be vacated and that would reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause).
Third, any request for relief as to past acts (annulment) or future cases (in rem relief) is still at issue even if there is currently no stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 78).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth William J Smyth
Movant(s):
THE BANK OF NEW YORK Represented By
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Trustee(s):
Sean C Ferry Theron S Covey Eric P Enciso
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
Tentative Ruling for 8/4/20:
Continue to 11/10/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.41). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20 [revised to reflect new CourtCall date]:
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Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [8/31/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 5/19/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/19/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic
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Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Hernandez Contreras Represented By Juanita V Miller
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Josephine E Salmon
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 33
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.37). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
10:00 AM
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
Deutsche Bank National Trust Represented By Jennifer C Wong Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEWREZ, LLC
vs DEBTOR
Docket 26
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection stipulation. There is no tentative ruling, but the parties should be prepared to provide this Court with an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
William Moises Martinez Represented By Erika Luna
Joint Debtor(s):
Maritza Del Pilar Martinez Represented By Erika Luna
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto
10:00 AM
Trustee(s):
Cassandra J Richey
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01068 Jamali et al v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 20
Please see the tentative ruling for the adversary status conference (Calendar No. 1.1, 8/4/20 at 11:00 a.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre Kevin R Broersma
Plaintiff(s):
Mohsen Lotfimoghaddas Represented By Yevgeniya Lisitsa
Parvin Jamali Represented By Yevgeniya Lisitsa
11:00 AM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
2) Slander of Title; 3) Unfair Business Practices; 4) Elder Financial Abuse; 5) Violation of FCRA; 6) Accounting; 7) Declaratory Relief fr. 6/2/20, 7/28/20
Docket 1
Tentative Ruling for 8/4/20:
Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
At a hearing on 7/28/20 at 2:00 p.m., this Court granted the MTD, but
continued the matter to this date solely with respect to whether this Court should grant leave to amend. The tentative ruling is that, unless this Court is persuaded not to adopt the tentative ruling set forth below, the MTD is granted in its entirety - i.e., without leave to amend.
Debtor's Motion for leave to file first amended complaint (adv. dkt. 20, "Leave to Amend Motion"), U.S. Bank's opposition (adv. dkt. 22), Debtor's reply (adv. dkt. 23)
The tentative ruling is to deny the Leave to Amend Motion for the
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reasons stated in U.S. Bank's opposition (adv. dkt. 22).
Proposed orders: U.S. Bank is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR
9021-1(b)(1)(B).
Standard requirements
[Same as prior tentative ruling]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
The tentative ruling is to grant the MTD (apart from the issue of
whether or not to grant leave to amend) on the grounds that it is law of the
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case that this Court has already ruled in connection with Debtor's motion to void lien filed in the main case that all of the grounds asserted in the MTD are persuasive. See 2:20-bk-12732-NB, dkt. 94.
Alternatively, even if it were not law of the case, this Court is still persuaded that on the merits, all of the arguments asserted in the MTD are persuasive.
Alternatively, and in addition, as of the preparation of this tentative ruling Debtor has not filed an opposition to the MTD, so any arguments in opposition to dismissal of this proceeding are deemed waived and forfeited.
Whether to grant leave to amend
The tentative ruling is to continue the hearing on the MTD, solely with respect to whether this Court should grant leave to amend, so as to be concurrent with the hearing on Plaintiff/Debtor's motion for leave to amend (dkt.20), which is set for hearing on 8/4/20 at 11:00 a.m. The tentative ruling is that no written order is required until this Court has ruled on that remaining issue.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014)
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(authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 3/21/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: N/A deadline. Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 8/4/20 at 11:00 a.m., concurrent with other matters.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
11:00 AM
Continue to 6/16/20 at 2:00 p.m., concurrent with the hearing on Defendant's motion to dismiss. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
Defendant(s):
U.S. BANK NATIONAL Pro Se
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
11:00 AM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 4
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 1.1, 8/4/20 at 11:00 a.m.).
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 9, 7/28/20 at 2:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
11:00 AM
Docket 204
Deny for the reasons set forth in the oppositions (dkt. 217, 219, 220, 221). Debtor's reply (dkt. 234) argues that Debtor is proceeding in good faith, but that is not the issue: the issue is whether a chapter 7 debtor can obtain approval of a refinancing that has no assurance of paying disputed claims in full - she may not. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Docket 212
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
Background
On 7/8/20, the Chapter 7 Trustee filed a Motion For Order (1) Compelling Debtor Zeta Graff And Those In Possession With Her To Turnover Property Of The Estate; And (2) Authorizing Trustee To Utilize The Services Of The United States Marshals To Enforce Court Order (the "Turnover Motion," dkt. 212). On 7/14/20, Pensco Trust Company, FBO Elizabeth S. Boren, IRA filed its joinder in the Turnover Motion. Dkt. 226. On 7/23/20 Debtor filed her opposition (dkt.226), and on 7/23/20 and 7/24/20
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Debtor filed her supplemental oppositions (dkt. 233, 240), . On 7/28/20, the Chapter 7 Trustee filed a reply (dkt. 242) and an objection to and request to strike Debtor’s late filed oppositions (dkt. 243).
Discussion
For the reasons set forth below, the tentative ruling is to grant the Turnover Motion.
The tentative ruling is that Debtor’s oppositions are untimely, contain inadmissible allegations, and should not be considered
LBR 9013-1(f)(1) (Local Bankruptcy Rule) provides that, except as set forth in inapplicable other LBRs, an interested party must file and serve their response to a motion on the moving party and the United States trustee "not later than 14 days before the date designated for hearing." LBR 9013-1(h) provides that, except as set forth in an inapplicable LBR, "if a party does not timely file and serve documents, the court may deem this to be consent to the granting or denial of the motion, as the case may be." The "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov) provide that "if your opposition or reply papers are filed late, you must include a brief explanation (and a request to accept such papers)."
The Trustee argues that Debtor’s oppositions should be stricken because they are not timely. Dkt. 243, p.4:19-23. In addition, the Trustee explains that he only had two business days to file his reply because of the late filings. Id. at p.4:15-17.
The tentative ruling is that the Trustee’s argument is persuasive on this issue. First, Debtor’s oppositions were untimely, without an excuse until Debtor's supplemental opposition, and then without admissible evidence sufficient to excuse such untimeliness. Second, the Trustee appears to have suffered harm due to the late filings – namely, a very short time to prepare and file a reply. Third, and finally, Debtor did not comply with the "Posted Procedures of Judge Bason" regarding providing an explanation for why papers were filed late, and a request that they be accepted.
Alternatively, the tentative ruling is to sustain the Trustee's objections to Debtor's declaration. See dkt.243. If Debtor's allegations are stricken, there is no evidence in opposition to the Turnover Motion. That is an alternative reason why the tentative ruling is to grant the Turnover Motion.
In the alternative, on the merits, the tentative ruling is that Debtor’s
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oppositions are not persuasive
Debtor’s explanations do not refute the Trustee’s arguments 11 U.S.C. 521(a) provides in relevant part
The debtor shall –
…
(4) if a trustee is serving in the case … surrender to the trustee all property of the estate and any recorded information, including books, documents, records, and papers, relating to property of the estate … [11 U.S.C. 521(a)(4)]
11 U.S.C. 542 provides in relevant part
… an entity, other than a custodian, in possession, custody, or control, during the case, of property that the trustee may use, sell, or lease under section 363 of this title … shall deliver to the trustee, and account for, such property or the value of such property … [11 U.S.C. 542(a)]
The Trustee alleges in the Turnover Motion that Debtor (i) has refused to allow the Trustee’s broker to show the property and (ii) is not maintaining insurance. See dkt. 212, p.6:14-15. Debtor’s oppositions assert that she has been acting in good faith. DKt. 240, p.4:7. Debtor states that she denied access to the Trustee’s real estate agent because she has been stricken with COVID-19, and it is not safe for the Trustee’s real estate agent and prospective purchasers to be exposed to the virus. Id. at p.2:15-20. Debtor also states that she is attempting to get court approval to finance the home insurance premiums. Id. at p.4:7-8. In the reply, the Trustee asserts that "Debtor does not actually dispute the Trustee’s allegations." Dkt. 242,
p.4:4-5.
The tentative ruling is that the Trustee’s argument is persuasive on this issue. Debtor does not appear to dispute the Trustee’s allegations, but rather seeks to explain how the actions were either justifiable or are being resolved. It is very unfortunate that Debtor asserts she has COVID-19, and this Court appreciates that Debtor may be attempting to be responsible and attempting to social distance from others. But this development only further illustrates that granting the Turnover Motion is appropriate. It seems that the best way for Debtor and other persons to be safe, while allowing the Trustee to discharge his duties, is for Debtor to surrender the home to the Trustee and relocate. Of course, it is very unfortunate for anyone to have to leave their
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home; but most chapter 7 debtors must do so, and the Trustee has met his burden to establish that, in order to carry out his duties, turnover is necessary.
Rule 7070 (Fed. R. Bank. P.) is appropriate to apply in this contested matter
Rule 70 (Fed. R. Civ. P.), made applicable in adversary proceedings by Rule 7070 (Fed. R. Bankr. P.), provides in relevant part
Party’s Failure to Act; Ordering Another to Act. If a judgment requires a party to convey land, to deliver a deed or other document, or to perform any other specific act and the party fails to comply within the time specified, the court may order the act to be done – at the disobedient party’s expense – by another person appointed by the court …
…
(d) Obtaining a Writ of Execution or Assistance. On application by a party who obtains a judgment or order for possession, the clerk must issue a writ of execution or assistance. [Rule 70(a)&(d)]
Rule 9014(c) provides a list of Federal Rules of Bankruptcy Procedure, applicable to adversary proceedings, that "shall apply" and another list of rules that "shall not apply" in any contested matter, unless the court directs otherwise. Rule 7070 is not in either list. Rule 9014(c) further provides that "the court may at any stage in a particular matter direct that one or more" of the rules applicable to adversary proceedings "shall apply." Lastly, Rule 9014(c) states that the "court shall give the parties notice of any order issued under this paragraph …"
The Trustee argues that application of Rule 7070 is appropriate and requests a court order applying Rule 7070. See dkt. 212, pp.15:23-16:2.
Debtor argues that the Turnover Motion should be denied because "it is based on Bankruptcy Rule 7070 which only applies in adversary proceedings
…" dkt. 240, p.3:22-23.
The tentative ruling is that the Trustee’s argument is persuasive on this issue. First, the Trustee’s basis for seeking turnover is not Rule 7070, but 11
U.S.C. 521 and 542. Second, it appears to be appropriate to implement those turnover requirements by issuing an order applying Rule 7070. This is the Trustee’s second turnover motion, and the Trustee has presented uncontested evidence that Debtor has not maintained insurance and that
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turnove is otherwise necessary. Moreover, even if this Court were to disregard that evidence (and this Court is not aware of any reason to do so), a court order applying Rule 7070 provides the Trustee with the tools necessary to compel turnover, which is required by the Bankruptcy Code and appropriate under 11 U.S.C. 105.
Conclusion
For the reasons set forth above, the tentative ruling is (a) to strike Debtor’s oppositions as untimely, and alternatively as not being supported by any competent evidence, and therefore grant the Turnover Motion as unopposed, (b) alternatively, to grant the Turnover Motion on the merits, and
to apply Rule 7070 to implement the Bankruptcy Code's turnover requirements.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
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Adv#: 2:19-01181 Elissa D. Miller, Chapter 7 Trustee v. NANO
(3) Recovery of Avoided Transfer [11 U.S.C. section 550]; (4) Declaratory Relief; and (5) Turnover [11 U.S.C. section 542] fr. 8/20/19, 10/29/19, 1/28/20, 03/31/20, 6/2/20
Docket 1
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 11:00 a.m., for the reasons set forth in the Defendant's status report (adv.dkt.11). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
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Continue to 8/4/20 at 11:00 a.m., to provide the parties time to finalize their settlement (see adv.dkt.10) and, if necessary or appropriate, obtain approval under Rule 9019 (Fed. R. Bankr. P.). Appearances are not required on 6/2/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Rima Adam Nano Represented By
G Marshall Hann
Defendant(s):
ADMON NANO Represented By Gary A Starre
Plaintiff(s):
Elissa D. Miller, Chapter 7 Trustee Represented By
Jeremy Faith Noreen A Madoyan
11:00 AM
Trustee(s):
Anna Landa
Elissa Miller (TR) Represented By Noreen A Madoyan Anna Landa
11:00 AM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20
Docket 323
Tentative Ruling for 8/4/20:
Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pimentel v. Layfield et al, Case No. 2:19-ap-01069-NB ("Pimentel Adv."), (d) Hickey v. Layfield, Case No. 2:19-ap-01070-NB ("Hickey Adv."), (e) Pachulski v. Layfield, Case No. 2:19-ap-01071-NB ("Pachulski Adv.").
L&B, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Lay-Invol, status conference
11:00 AM
Continue as set forth in part "(2)" of this tentative ruling, below.
Pimentel Adv.
Status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Hickey Adv.
Status conference
On 4/29/20, the parties stipulated to dismiss this proceeding with prejudice (adv. dkt. 24). Plaintiff is directed to lodge a proposed order approving the stipulation and dismissing the adversary proceeding within 7 days after the hearing date.
Pachulski Adv.
Status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conferences (L&B, Lay-Invol., Pimentel Adv., & Pachulski Adv.) Continue status conferences to 12/8/20 at 11:00 a.m., provided that, prior to that hearing (and after this Court has established hearing dates for 2021), this Court anticipates posting a tentative ruling further continuing the status conferences into 2021.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
11:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
11:00 AM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19, 02/18/20, 3/3/20, 03/31/20
Docket 1
Tentative Ruling for 8/4/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 5 (8/4/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01069 Pimentel v. Layfield et al
Cont'd Status Conference re: Complaint Against Dischargeability
Declaratory Relief and 2) Fraudulent Transfer / Concealment fr. 5/21/19, 06/04/19, 7/30/19, 10/1/19, 03/31/20
Docket 1
Tentative Ruling for 8/4/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 5 (8/4/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
WESLEY Howard AVERY Pro Se
Affeld Grivakes LLP Represented By Damion Robinson
Plaintiff(s):
Rodney A Pimentel Represented By Yana G Henriks
Trustee(s):
Wesley H Avery (TR) Represented By
11:00 AM
Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01070 Hickey v. Layfield
of Dischargeability of Debt [11 U.S.C. Section 523(a)(4)]); 3) Determination of Dischargeability of Debt [11 U.S.C. Section 523(a)(6)]
fr. 05/21/19, 10/15/19, 03/31/20
Docket 1
Tentative Ruling for 8/4/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 5 (8/4/20 at 11:00 a.m.).
Tentative Ruling for 3/31/20:
Continue to 8/4/20 at 11:00 a.m., pending the outcome of Mr. Layfield's criminal proceedings and appeal of this Court's order denying his motion for judgment on the pleadings (adv. dkt. 12, 14). Joint status report due 7/21/20. Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
11:00 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
Continue to 11/5/19 at 11:00 a.m. based on the Joint Status Report (dkt. 5). Appearances are not required on 5/21/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
Plaintiff(s):
Fred A. Hickey Represented By Derrick F Coleman
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01071 Richard M. Pachulski, Chapter 11 Trustee of the Ba v. Layfield
fr. 05/21/19, 11/5/19, 03/31/20
Docket 1
Tentative Ruling for 8/4/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 5 (8/4/20 at 11:00 a.m.).
Tentative Ruling for 3/31/20:
Continue to 8/4/20 at 11:00 a.m. based on the Joint Status Report (adv. dkt. 27).
Appearances are not required on 3/31/20.
If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically. Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED
until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
11:00 AM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/21/19:
Continue to 11/5/19 at 11:00 a.m. based on the Joint Status Report (dkt. 5). Appearances are not required on 5/21/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip James Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski, Chapter 11 Represented By
James KT Hunter
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen
1:00 PM
Docket 1211
Please see the tentative ruling for the status conference (calendar no. 3, 8/4/20 at 1:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
1:00 PM
claim of Odyssesus Investment Group, LLC
Docket 1213
Please see the tentative ruling for the status conference (calendar no. 3, 8/4/20 at 1:00 p.m.)
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
1:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20, 7/14/20, 7/28/20
Docket 1
Tentative Ruling for 8/4/20:
Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion For Order Disallowing Claim Of Jena Choi And Kurt Goodwin (dkt. 1211, 1212)
Sustain the objection and disallow the claim in full.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Motion For Order Disallowing Claim Of Odyssesus Investment Group, LLC (dkt. 1213, 1214)
Sustain the objection and disallow the claim in full.
Proposed order: Movant is directed to lodge a proposed order via LOU
1:00 PM
within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Bobs LLC Motion For Relief From The Automatic Stay (dkt. 936)
Continue to the same date and time as the continued status conference.
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic
1:00 PM
Instructions").
Current issues
Motion For Order Approving Plan Treatment Stipulation (dkt. 1207) Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Bobs LLC Motion For Relief From The Automatic Stay (dkt. 936)
Continue to the same date and time as the continued status conference.
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 8/4/20 at 1:00 p.m. to be concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By
1:00 PM
David A Tilem Mark A Kressel Alan M Insul
1:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20, 5/19/20, 7/14/20, 7/28/20
BOBS, LLC
vs DEBTOR
Docket 936
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (calendar no. 3, 8/4/20 at 1:00 p.m.)
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the status conference (calendar no. 2, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 11/21/19:
Please see the tentative ruling for the status conference (calendar no. 3, 11/21/19 at 2:00 p.m.)
Tentative Ruling for 10/1/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) a proposed timeline, and sequence, for discovery and court proceedings regarding the value of the Paramour and whether Bobs,
LLC's second loan is secured or unsecured, and (2) whether this Court should set an evidentiary hearing regarding the value of the Paramour, or whether other procedures are appropriate, such as using a third party appraiser, selected jointly by the parties' own appraisers, who would be either appointed as this Court's own expert witness to assist this Court in assesing the parties' appraisals and testimony of their appraisers, or, alternatively, whose determination would be binding. See Motion (dkt.936), Opposition
1:00 PM
papers (dkt.948, 949, 950, 951, 952), and Reply papers (dkt.958, 959).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
1:00 PM
Docket 1
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Subchapter V Plan (dkt. 40) and Disclosure Statement (dkt. 41), no opposition is on file
The tentative ruling is to set a deadline of 8/11/20 for Debtor to do the following.
Amended Plan
Debtor must file an amended Plan corrects the error values reflected in the current version. See dkt.40, Ex.A & A-1, at PDF pp.2-4.
Amended Disclosure Statement
Debtor must file an amended Disclosure Statement that reproduces the financial projections in Attachment 4 in a more user-friendly format (the existing text is miniature, and although that text can be enlarged when viewed in PDF format, it should be legible when printed and mailed to creditors). In addition, the tentative ruling is that the Disclosure Statement must include a declaration providing (i) a brief summary of Debtor's background and exit strategy, along the lines of what was included in Debtor's initial status report (dkt.29 at PDF p.13, "Part I - 2") and (ii) sufficient support for Debtor's
1:00 PM
financial projections.
Proposed order
Debtor must lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued state conference (see below).
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
Plan/Disclosure Statement*: see above.
Continued status conference: 10/6/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
1:00 PM
4/7/20, 6/2/20
Docket 1
Tentative Ruling for 8/4/20:
Continue as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has nothing to raise sua sponte.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 10/14/20 using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/6/20 at 1:00 p.m. Brief status report due 9/22/20.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
#6.00 | Cont'd Status Conference re: Chapter 11 Case |
fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, | |
07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15, | |
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16, | |
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18, | |
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18, 9/4/18, | |
10/9/18, 11/6/18, 01/08/19, 3/26/19, 05/21/19, 8/20/19, 11/26/19, | |
12/10/19, 4/7/20 |
Docket 9
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 1:00 p.m., with a brief status report due 11/24/20. Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 392, 394, 395, 396) and Status Report (dkt. 397). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
1:00 PM
fr. 9/24/19, 11/12/19, 1/14/20, 3/10/20, 04/21/20, 6/2/20, 7/14/20
Docket 1
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 1:00 p.m., with a brief status report due 11/24/20. Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify opposing counsel of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the Debtor's latest filed documents, including its Monthly Operating Reports (dkt. 101, 102) and Status Report (dkt. 103). This Court is not aware of issues that would warrant a status conference at this time.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20, 4/21/20,
5/5/20
Docket 1
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
fr. 7/14/20
Docket 172
Please see the tentative ruling for the status conference (Calendar No. 10, 8/4/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
4/21/20, 6/30/20, 7/28/20
Docket 42
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Amended disclosure statement (dkt. 153, 155) and amended plan of reorganization (dkt. 154), Order setting combined hearing on (1) disclosure statement approval and (2) plan confirmation, and related deadlines (dkt. 159), proof of service of voting package (dkt 166), Mission Hen's objection (dkt. 169), no reply or ballot summary is on file
There is no tentative ruling. The outcome of the Amended Valuation Motion could affect whether Debtors' amended plan is confirmable. This Court will defer setting new deadlines for submission of Debtors' reply in support of confirmation and a ballot summary until that matter has been resolved.
Debtors' second motion for order determining value of collateral (dkt. 172, "Amended Valuation Motion") and request for judicial notice (dkt. 173), stipulation & order continuing hearing (dkt. 175, 177), Mission Hen's
1:00 PM
opposition (dkt. 187), Debtor's supplemental appraiser declaration (dkt. 189)
There is no tentative ruling. The parties should be prepared to address how they seek to resolve their valuation disputes: e.g., (i) with an evidentiary hearing (see the sample order regarding video hearings, posted on Judge Bason's portion of this Court's website, at www.cacb.uscourts.gov); (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own exper under FRE 706.
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: TBD, after the pending valuation issues are resolved.
Continued status conference: 9/15/20 at 1:00 p.m. Brief status report due 9/1/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
fr. 6/30/20
Docket 159
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar no. 10, 8/4/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Docket 273
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 281
Please see the tentative ruling for the status conference (Calendar No. 5, 8/4/20 at 2:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 273
Please see the tentative ruling for the status conference (Calendar No. 5, 8/4/20 at 2:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 65
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 8/4/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
2:00 PM
debtor in possession on insurance claims related to damage to her Bel Air Rd property
fr. 4/7/20, 4/21/20, 5/5/20, 6/16/20, 6/30/20
Docket 167
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 8/4/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
2:00 PM
4/21/20, 5/5/20, 6/16/20, 6/30/20
Docket 1
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
Continue concurrent with the continued status conference (see below).
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217), Debtor's supplement (dkt. 241)
Continue concurrent with the continued status conference (see below).
Debtor's Amended disclosure statement (dkt. 281, 289) and redline
2:00 PM
version (dkt. 282), Amended plan (dkt. 283), and redline version (dkt. 284), notice of hearing (dkt. 285, dkt. 293), objection of Shiv and Saroj Gupta (the "Guptas," dkt. 295), joinder of Andrea Freidlander (dkt. 297), and Debtor's reply (dkt.299)
The tentative ruling is to approve the Disclosure Statement, subject to the proposed amendments to the Plan and Disclosure Statement attached to Debtor's reply (dkt.299), and further subject to (i) amending the certification at the end of the Plan and end of the Disclosure Statement to cross-reference the changes to the local forms reflected in Debtor's redlines and (ii) correcting the phrase "working as a legal assistance" (dkt.299 at PDF p.46, para. "(4)") to "working as a legal assistant." The tentative ruling is to set a deadline of 8/7/20 for Debtor to file those amended documents and lodge a proposed order setting a confirmation hearing concurrent with the continued status conference (see below), and setting deadlines for service of the voting package, objections, etc. The order should be substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov) (except that the hearing is not a combined hearing on the Disclosure Statement and the Plan - it is only on whether or not to confirm the Plan).
Debtor's application to employ Law Offices of Mainak D'Attaray as special litigation counsel (dkt. 273, 274), UST's opposition (dkt. 277), notice of hearing (dkt. 290), Debtor's reply (dkt. 291)
Continue concurrent with the continued status conference (see below)/hearing on whether to confirm Debtor's proposed Plan. The tentative ruling is that, if the Plan were to be confirmed, then it would be appropriate to grant the application, effective as of the date proposed therein, subject to (i) consideration of any further objection(s) by the UST at the hearings, (ii) the modifications set forth in Debtor's reply (dkt. 291) regarding waiver of the 10% late payment penalty and arbitration provision, and (iii) the standard employment terms set forth in the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov).
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
2:00 PM
Continued status conference: 9/29/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling.
Application to employ public adjuster Asset Recovery Association dba ClaimsXP (dkt. 167, "Application"); opposition of Wilmington Savings Fund Society ("Wilmington") (dkt. 181, 182); notice of hearing (dkt. 184); Debtor’s reply (dkt. 192), statement of disinterestedness (dkt. 217), Debtor's supplement (dkt. 241)
2:00 PM
There is no tentative ruling.
Debtor's disclosure statement (dkt. 253) and chapter 11 plan of reorganization ("Plan," dkt. 252), and objection of United States Trustee ("UST," dkt.264), Amended Schedules (dkt.232) and Amended MORs (dkt.247, 256, 261, 263, 265)
Debtor is racing against time to propose and obtain confirmation of a plan before her secured creditors can foreclose and/or before her tentative arrangements with creditors expire. As set forth in numerous tentative rulings posted since this inception of this case (which this Court will memorialize on the docket), Debtor frequently has been out of compliance with her obligations and this Court's directions. Her latest proposed Plan is a last- minute, desperate attempt to make this attempted reorganization work.
There is no tentative ruling regarding the proposed Plan and proposed disclosure statement. Debtor is directed to address the issues raised in the UST's objection including but not limited to issues regarding (i) her feasibility analysis, (ii) her historial income and expenses as reflected in her filed documents in this case, (iii) the adequacy of her disclosure of historical and projected revenues and expenses, and (iv) any "new value" issues.
If Debtor can make sufficient arguments and offers of proof to warrant the following relief, the tentative ruling is to set a deadline of 7/3/20 for Debtor to file, and serve only on the parties appearing at today's hearing, her supplemental/amended documents on the foregoing issues and a proposed order setting a combined hearing, concurrent with the continued status conference as set forth in part "(2)" below, on confirmation of a plan and final approval of a disclosure statement. Any such proposed order must be in the form posted on Judge Bason's portion of the Court's website, at www.cacb.uscourts.gov.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/Disclosure Statement*: See above.
Continued status conference: 7/28/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By Michael R Totaro
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 69
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Corona Represented By Michael V Jehdian
Joint Debtor(s):
Maricela Corona Represented By Michael V Jehdian
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PHH MORTGAGE CORPORATION
vs DEBTOR
Docket 82
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maria G Roman Represented By Amanda G Billyard
Movant(s):
PHH Mortgage Corporation as Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP]
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 60
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative
10:00 AM
rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal, such dismissal could be vacated and that would reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause).
Third, any request for relief as to past acts (annulment) or future cases (in rem relief) is still at issue even if there is currently no stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Miguel Ortiz Represented By
Jaime A Cuevas Jr.
Movant(s):
U.S. Bank National Association, not Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 37
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Kelvin Lamar Shelton Sr. Represented By Ali R Nader
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOWD POINT MASTER FUNDING TRUST 2019-PM7
VS DEBTOR
Docket 54
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rose Marie Flores Represented By Joshua R Driskell
Movant(s):
Towd Point Master Funding Trust Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CASTAIC OAKS HOA
vs DEBTOR
Docket 75
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Maimoye Keenan Uku Represented By Omatshola E Dafeta
Movant(s):
Castaic Oaks HOA Represented By Neil B Katz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 93
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Eric L Creer Pro Se
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 36
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's untimely response, dkt. 39). In addition, Debtor's counsel is directed to address why there was no compliance with the following requirement in the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov): "If your opposition or reply papers are filed late, you must include a brief explanation (and a request to accept such papers)."
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jamal Curtis Alexander Represented By Barry E Borowitz
Movant(s):
HSBC Bank USA, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 39
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 42).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Benito Javier Lopez Represented By Jaime A Cuevas Jr.
Movant(s):
U.S. Bank National Association, as Represented By
Renee M Parker
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEWREZ LLC
vs DEBTOR
Docket 33
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael A Schmitt Represented By Keith F Rouse
Joint Debtor(s):
Rita A Schmitt Represented By Keith F Rouse
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Alan Steven Wolf Caren J Castle
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 44
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Crystal J Winters Represented By Stephen S Smyth
Andrew Edward Smyth
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ASSET-BACKED CERTIFICATES, SERIES 2006-22
vs DEBTOR
Docket 44
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Therese Kiwi Foisia Represented By Nima S Vokshori
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 32
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
10:00 AM
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Luis Velasquez Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Griselda Velasquez Represented By Jaime A Cuevas Jr.
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AEGIS ASSET BACKED SECURITIES
vs DEBTOR
Docket 63
Debtor(s):
Ih Heen Bess Chang Represented By Michael Okayo
Christopher C Barsness
Movant(s):
Aegis Asset Backed Securities Represented By Julian K Bach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 23
- NONE LISTED -
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
Vadim Kogan Represented By Richard J Reynolds Joseph P Buchman
10:00 AM
FBC MORTGAGE, LLC
vs DEBTOR
Docket 22
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
10:00 AM
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should
10:00 AM
not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kelly W Maxwell Pro Se
Movant(s):
FBC Mortgage, LLC dba Home Represented By Nabeel M Zuberi
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BBV PROFIT SHARING PLAN
vs DEBTOR
Docket 15
- NONE LISTED -
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
Movant(s):
BBV profit sharing plan Represented By Harris L Cohen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 52
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Courtney Celeste Schley Represented By
S Renee Sawyer Blume Matthew D. Resnik
Movant(s):
Toyota Lease Trust as serviced by Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
EXETER FINANCE, LLC
vs DEBTOR
Docket 53
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
10:00 AM
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Johnny Campbell Represented By
D Justin Harelik
Joint Debtor(s):
Nyeshia Campbell Represented By
D Justin Harelik
Movant(s):
Exeter Finance, LLC Represented By Cheryl A Skigin
Marjorie M Johnson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ACAR LEASING LTD
vs DEBTOR
Docket 54
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Alfred J. Johnson Represented By
D Justin Harelik
Movant(s):
ACAR Leasing LTD d/b/a GM Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 290
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Caution to Movant
In the future, Movant is directed to comply with the applicable rules of service. See Fed. R. Bankr. P. 4001(a)(1).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
10:00 AM
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
10:00 AM
Docket 9
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Everett Fred Sanchez Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK N.A. vs
DEBTOR
Docket 369
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/28/20 hearing, this Court was persuaded to continue this matter because special appearance counsel for Debtor apprised this Court of a potential forebearance agreement between the parties. There is no tentative ruling, but the parties should be prepared to address whether a further continuance of this matter is appropriate to attempt to finalize any forebearance agreement, or other arrangement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael R Totaro Represented By Martina A Slocomb
Candice Candice Bryner
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Robert P Zahradka
Trustee(s):
Brad D Krasnoff (TR) Represented By Eric P Israel
Michael G D'Alba
10:00 AM
HERITAGE ESTATES OF COMPTON HOMEOWNERS ASSOC
vs DEBTOR
Docket 80
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
HERITAGE ESTATES OF Represented By
Erica T Loftis Pacheco Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 28
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued at Movant's request to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to update this Court on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Wende J. Brown Represented By
D Justin Harelik
Movant(s):
Wilmington Savings Fund Society, Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/30/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/30/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fidel Santiago Gama Sr. Represented By Matthew D. Resnik
Joint Debtor(s):
Yelba R Santiago Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 33
Debtor(s):
Dagoberto De Los Angeles Gutierrez Represented By
Lionel E Giron
Movant(s):
U.S. BANK NATIONAL Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 38
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued at Movant's request to allow time for the parties to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to update this Court on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 7/14/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Malcolm E. Williams Represented By Donny A Ekine
Movant(s):
Wells Fargo Bank, N.A. Represented By Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST NATIONAL ASSOC vs
DEBTOR
Docket 22
Debtor(s):
Daniel Chang Represented By Jonathan J. Lo
Movant(s):
U.S. Bank Trust National Represented By Sean C Ferry
Christopher Giacinto
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 78
Tentative Ruling for 8/18/20 (same as for 7/14/20 and 5/19/20 except for CourtCall deadline in brackets):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [9/30/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 82).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association Represented By Matthew R. Clark III Sean C Ferry
April Harriott Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SUN RICH DEVELOPMENT I, LLC
vs DEBTOR
Docket 10
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/7/20 hearing, Debtor requested that the hearing on this motion be continued for a possible sale of Debtor's assets. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 13). In addition, Debtor should be prepared to address the status of any proposed sale.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
10:00 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 13). In addition, Debtor should be prepared to address the issues raised in Movant's reply (dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Sun Rich Development I, LLC Represented By David Brian Lally
10:00 AM
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
11:00 AM
Docket 215
Deny for the reasons stated in the conditional opposition of U.S. Bank N.A. as indenture trustee for certain Ajax Mortgage Loan Trust securities (dkt.232).
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: US Bank is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
11:00 AM
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Adv#: 2:18-01212 Graner et al v. DeCoster et al
fr. 9/4/18,10/9/18, 11/27/18, 01/08/19, 2/5/19, 03/05/19, 04/30/19, 06/04/19; 07/30/19, 9/24/19, 11/12/19, 12/17/19, 02/18/20, 3/3/20,
6/16/20
Docket 1
Debtor(s):
Douglas Lawrance DeCoster Represented By Charles J Brash
Defendant(s):
Douglas Lawrance DeCoster Pro Se
Elsa Diane DeCoster Pro Se
Joint Debtor(s):
Elsa Diane DeCoster Represented By Charles J Brash
Plaintiff(s):
Kieran Graner Represented By Stephen B Goldberg
Sharon Graner Represented By Stephen B Goldberg
11:00 AM
Trustee(s):
Rosendo Gonzalez (TR) Represented By David M Goodrich
11:00 AM
Adv#: 2:20-01068 Jamali et al v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 20
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 5, 8/18/20 at 11:00 a.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 1.1, 8/4/20 at 11:00 a.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre Kevin R Broersma
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
Mohsen Lotfimoghaddas Represented By Yevgeniya Lisitsa
11:00 AM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Docket 4
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 5, 8/18/20 at 11:00 a.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 1.1, 8/4/20 at 11:00 a.m.).
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 9, 7/28/20 at 2:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
Defendant(s):
U.S. BANK NATIONAL Represented By Olivier J Labarre
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
11:00 AM
Adv#: 2:20-01068 Jamali v. U.S. BANK NATIONAL ASSOCIATION AS TRUSTEE
Slander of Title; 3) Unfair Business Practices; 4) Elder Financial Abuse; 5) Violation of FCRA; 6) Accounting; 7) Declaratory Relief fr. 6/2/20, 7/28/20, 8/4/20
Docket 1
Tentative Ruling for 8/18/20:
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
At a hearing on 7/28/20 at 2:00 p.m., this Court granted the MTD, but
continued the matter to 8/4/20 at 11:00 a.m. solely with respect to whether this Court should grant leave to amend. This Court was persuaded to further continue the hearing to this date to allow additional oral argument on that issue in the event that Plaintiff/Debtor wishes, after consultation with her current counsel or any new counsel, to contest this Court's tentative rulings regarding the MTD and Plaintiff/Debtor's motion for leave to file an amended complaint.
The tentative ruling is to grant the MTD in its entirety - i.e., without leave to amend - for the reasons stated below.
11:00 AM
Plaintiff/Debtor's Motion for leave to file first amended complaint (adv. dkt. 20, "Leave to Amend Motion"), U.S. Bank's opposition (adv. dkt. 22), Debtor's reply (adv. dkt. 23)
The tentative ruling is to deny the Leave to Amend Motion for the reasons stated in U.S. Bank's opposition (adv. dkt. 22).
Proposed orders: U.S. Bank is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling (including the tentative rulings for prior dates reproduced below), thereby adopting the tentative rulings as this Court's final rulings, all subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Standard requirements
[Same as prior tentative ruling]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
11:00 AM
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
At a hearing on 7/28/20 at 2:00 p.m., this Court granted the MTD, but
continued the matter to this date solely with respect to whether this Court should grant leave to amend. The tentative ruling is that, unless this Court is persuaded not to adopt the tentative ruling set forth below, the MTD is granted in its entirety - i.e., without leave to amend.
Debtor's Motion for leave to file first amended complaint (adv. dkt. 20, "Leave to Amend Motion"), U.S. Bank's opposition (adv. dkt. 22), Debtor's reply (adv. dkt. 23)
The tentative ruling is to deny the Leave to Amend Motion for the reasons stated in U.S. Bank's opposition (adv. dkt. 22).
Proposed orders: U.S. Bank is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR
9021-1(b)(1)(B).
Standard requirements
[Same as prior tentative ruling]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
11:00 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current Issues
U.S Bank's Motion to dismiss (adv. dkt. 4, "MTD"), no opposition is
on file
The tentative ruling is to grant the MTD (apart from the issue of
whether or not to grant leave to amend) on the grounds that it is law of the case that this Court has already ruled in connection with Debtor's motion to void lien filed in the main case that all of the grounds asserted in the MTD are persuasive. See 2:20-bk-12732-NB, dkt. 94.
Alternatively, even if it were not law of the case, this Court is still persuaded that on the merits, all of the arguments asserted in the MTD are persuasive.
Alternatively, and in addition, as of the preparation of this tentative ruling Debtor has not filed an opposition to the MTD, so any arguments in opposition to dismissal of this proceeding are deemed waived and forfeited.
Whether to grant leave to amend
The tentative ruling is to continue the hearing on the MTD, solely with respect to whether this Court should grant leave to amend, so as to be concurrent with the hearing on Plaintiff/Debtor's motion for leave to amend (dkt.20), which is set for hearing on 8/4/20 at 11:00 a.m. The tentative ruling is that no written order is required until this Court has ruled on that remaining issue.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
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Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a)
venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 3/21/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: N/A deadline. Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: N/A
Continued status conference: 8/4/20 at 11:00 a.m., concurrent with other matters.
Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for
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the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/2/20:
Continue to 6/16/20 at 2:00 p.m., concurrent with the hearing on Defendant's motion to dismiss. Appearances are not required on 6/2/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Parvin Jamali Represented By Michael R Totaro
Defendant(s):
U.S. BANK NATIONAL Pro Se
Plaintiff(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
1:00 PM
VADIM KOGAN
vs DEBTOR
Docket 23
Grant in part and deny in part as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
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The motion requests requests "in rem" relief (i.e., relief applicable
notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is no evidence of multiple bankruptcy cases, unauthorized transfers of interests in property, or other acts that would amount to a scheme to delay, hinder, or defraud the Movant within the meaning of the authorities cited above.
Movant's assertion that Debtors are involved in the cannabis business - while apparently accurate in general - has not been tied to this
specific property. Even if it were, Movant has not established how any activity at the property that might be illegal under federal law (with no evidence of any enforcement action by federal prosecutors) has any bearing on whether to grant in rem relief.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
1:00 PM
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
Vadim Kogan Represented By Richard J Reynolds Joseph P Buchman
1:00 PM
Docket 1
Tentative Ruling for 8/18/20:
Appearances required by counsel for the debtors.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Vadim Kogan's Motion For Relief From The Automatic Stay (dkt. 23, 29)
Grant in part and deny in part as set forth in calendar no. 1, 8/18/20 at 1:00 p.m. (Appearances are not required on this matter.)
Proof of service (dkt.35) for Order Setting Bar Date (dkt. 30)
The proof of service asserts that service occurred before the order was issued - an impossibility. The tentative ruling is to direct Debtor to file a corrected proof of service by the deadline set forth below.
Finances
Debtors' amended bankruptcy schedules (dkt.26) appear to have many of the same problems noted in the tentative ruling for 7/28/20 (reproduced below). For example, amended Bankruptcy Schedule I (dkt.26, at PDF
p.37-38) lists income but no income taxes. How can that be, and why has this not been corrected?
Affiliates' connections
At the status conference on 7/28/20, Debtors committed to filing a
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declaration with a chart of Debtors' affiliates, their relationships with one another, and other information to assist this Court and parties in interest in understanding Debtors' businesses. As of the preparation of this tentative ruling, no such declaration is on the docket. Why not?
Monthly operating reports ("MORs")
As of the preparation of this tentative ruling there are no MORs on the docket. Why not?
Deadlines
The tentative ruling is to issue an order to show cause ("OSC") why this case should not be dismissed or converted, or why other remedies should not be imposed, if the foregoing issues are not corrected by 8/25/20. The tentative ruling is to set a hearing on the OSC concurrent with the continued status conference (see below).
Deadlines/dates. This case was filed on 6/23/20.
Bar date: 10/29/20 (dkt. 30; see above regarding service).
Procedures order: dkt.6 (timely served, dkt.16)
Plan/Disclosure Statement*: TBD
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact
1:00 PM
CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the recently filed documents in this case, including Debtor's status report (dkt. 21).
UST Compliance
Debtors are directed to address the status of establishing debtor in possession bank accounts, and compliance with the "7 day package" for the United States Trustee.
Income
Debtors' Bankruptcy Schedule I lists $24,000 per month of combined income from employment by their affiliate Spliffin Group, Inc., but (i) they list
$0 for any any income tax, medicare, or social security deductions (dkt.17, at PDF pp.39-40) and (ii) Debtors report $0 in income from any source for the past several years in their Statement Of Financial Affairs ("SOFA") (dkt.17, pp.1-2 (PDF pp.45-46)). How are these things possible?
Affiliates' finances
This Court's Procedures order (dkt.6) provides:
4. Affiliates. For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses and (b) any spouse. See §§ 101(2) & (9); Rule 2015.3; SBE v. Woo, 82 Cal. App.4th 481, 483-84 (2000). Prior authorization of this Court is required for Debtor to cause any affiliate to act out of the ordinary course of that affiliate’s business (§ 363(c)). In jointly administered cases, MORs must be filed in each debtor’s separate case. Debtor may request at the principal status conference to be excused from these requirements. [Id., p.2:11-18]
Debtors are directed to address what steps are being taken to comply with this requirement, and whether, in addition to any other requirements, this Court should direct Debtors to file declaration(s) with a graphic chart of their
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affiliates' corporate/business structure/relationships.
Deadlines/dates. This case was filed on 6/23/20.
Bar date: 10/29/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.6 (timely served, dkt.16)
Plan/Disclosure Statement*: TBD
Continued status conference: 9/1/20 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
1:00 PM
Docket 152
Continue to be concurrent with the continued Status Conference (see calendar no. 5, 8/18/20 at 1:00 p.m.), to address the following issues.
Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
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No later than 7 days after the date of this hearing the movant
must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By
1:00 PM
Stella A Havkin
1:00 PM
Docket 155
- NONE LISTED -
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20, 7/28/20
Docket 1
Tentative Ruling for 8/18/20:
Continue as set forth below. Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Motion For Order Disallowing Claim Number 9 (dkt. 152) Continue to be contemporaneous with the continued Status
Conference (see below).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/1/20 at 1:00 p.m., to be concurrent with other matters. No status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 1
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's disclosure statement (dkt. 181) and plan (dkt. 182) The tentative ruling is to set a deadline of 8/25/20 for Debtor to file,
BUT NOT SERVE on anyone except the United States Trustee and parties requesting a copy, manually "blacklined" and "clean" copies of an amended Plan and amended Disclosure Statement to correct the issues discussed below, and lodge a proposed order, substantially in the form posted on Judge Bason's portion of the Court's website (at www.cacb.uscourts.gov), setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan, contemporaneous with the continued status conference (see below). The issues to be corrected are as follows:
The Plan in its current form is infeasible by $13,343.15 on the Effective Date
Debtor's cash flow statement (dkt. 181, Ex.C) shows a negative balance on the effective date: it gives the impression that the Plan is infeasible because Debtor would not be able to make $13,343.15 in required
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effective date payments (see 11 U.S.C. 1129(a)(11)). Debtor is directed to address whether it will have sufficient cash on hand to make these payments, and make any necessary changes to Ex.C.
Sufficient cash flow?
Debtor's cash flow statement (dkt. 181, Ex.C) projects gross income of
$368,644.89, which is the average of Debtor's gross income from
1/31/20-6/30/20 (Id., Ex.D). But, Exhibit D reflects a significant decrease in income during the months of April, May and June 2020 (Id.). Debtor should be prepared to address the cause of this decrease (e.g. is it related to COVID-19 or some other issue?) and what impact (if any) the source of the
decrease may have on Debtor's projected gross income over the length of the Plan.
Adjustments to unsecured claims in Exhibit F
Debtor lists adjusted amounts of unsecured claims as negative numbers (dkt.181, at PDF p.13). That would mean those creditors would be paying Debtor, which is incorrect. Debtor appears to have conflated the dollar amount by which Debtor wishes to reduce the claims with the resulting net dollar amount of such claims (e.g., a $180,000 claim reduced by $180,000 results in a claim of $-0-, not a claim of negative $180,000).
Discrepancies between tax claims in Ex.A-1 and Ex.I (IRS), J (EDD), and K (LA)
In Exhibit I, Debtor calculates the monthly payment to the IRS as
$3,933.74 (for 40 months). See dkt.181 at PDF p.23 (first dollar amount). But Debtor's Ex.A-1 (dkt.182, PDF p.10, 1st line) lists the monthly amount as
$3,826.77 (for 40 months).
Similarly, in Exhibit J Debtor calculates the monthly payment to the EDD as $1,088.51 (for 40 months). See dkt.181 at PDF p.23 (first dollar amount). But Debtor's Ex.A-1 (dkt.182, at PDF p.10, 2d line) lists the monthly amount as $1,058.91 (for 40 months).
The error appears to be that Debtor has included an additional payment (a 41st payment) on the Effective Date. See Plan (dkt.182), Ex.A, at PDF p.8. Based on this Court's own entry of the correct data on Ex.A & A-1, the monthly amortization payments match Ex.I and J.
As for the tax claim of the City of Los Angeles, Debtor has manually entered a monthly payment of $831.26 but has not listed the proposed 0.5% interest rate on Ex.A. See Plan (dkt.182), Ex.A, at PDF p.8 (last individual claim listed). With that correction, Ex.A and Ex.K will match.
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Omission of some exhibits?
Debtor's proposed disclosure statement is bulky. Copying and mailing this document may be expensive, and many of the exhibits appear to be unnecessary (e.g., once the monthly tax claim payments are corrected as set forth above, it appears that Exhibits I, J and K can be omitted; and it is unclear why stipulations and other filed documents need to be reproduced and served on all creditors when they are available on the docket and, upon request, from Debtor's counsel). Debtor is directed to address whether many of the exhibits can be omitted, or alternatively if they can be replaced by a statement such as "Exhibits through are available on the Court's docket, and also can be obtained by written request to Debtor's attorneys at
."
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19, dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19, dkt. 16).
Plan/Disclosure Statement*: see above.
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
Docket 1
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Subchapter V Plan (dkt. 40) and Disclosure Statement (dkt. 41), no opposition is on file
The tentative ruling is set a deadline of 8/25/20 for Debtor to file an Amended Subchapter V Plan and Disclosure Statement addressing the issues noted in this Court's 8/4/20 Tentative Ruling (section 1(a) below).
Debtor's notice of setting/increasing insider compensation (filed with UST), First Home Bank's opposition (dkt. 47) & request for hearing (dkt. 49), UST's opposition (dkt. 48), notice of hearing (dkt. 50)
Appearances required.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
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Plan/Disclosure Statement*: see above.
Continued status conference: 10/6/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Subchapter V Plan (dkt. 40) and Disclosure Statement (dkt. 41), no opposition is on file
The tentative ruling is to set a deadline of 8/11/20 for Debtor to do the following.
Amended Plan
Debtor must file an amended Plan corrects the error values reflected in the current version. See dkt.40, Ex.A & A-1, at PDF pp.2-4.
Amended Disclosure Statement
Debtor must file an amended Disclosure Statement that reproduces the financial projections in Attachment 4 in a more user-friendly format (the
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existing text is miniature, and although that text can be enlarged when viewed in PDF format, it should be legible when printed and mailed to creditors). In addition, the tentative ruling is that the Disclosure Statement must include a declaration providing (i) a brief summary of Debtor's background and exit strategy, along the lines of what was included in Debtor's initial status report (dkt.29 at PDF p.13, "Part I - 2") and (ii) sufficient support for Debtor's financial projections.
Proposed order
Debtor must lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued state conference (see below).
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
Plan/Disclosure Statement*: see above.
Continued status conference: 10/6/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
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Docket 50
Please see the tentative ruling for the status conference (Calendar No. 7, 8/18/20 at 2:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
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fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 02/18/20, 4/21/20, 6/2/20, 07/07/20
Docket 5
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (calendar no. 8, 8/18/20 at 1:00 p.m.)
Tentative Ruling for 7/7/20:
Please see the tentative ruling for the status conference (calendar no. 2, 7/7/20 at 1:00 p.m.)
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 18, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
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Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
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fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20
Docket 1
Tentative Ruling for 8/18/20:
Continue as set forth below. Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 5, as supplemented with latest proposed budget)
Grant on a further interim basis, on the same terms and conditions as previously ordered (dkt. 292), subject to any revisions to Debtor's budget that are acceptable to East West Bank or, alternatively, that are approved by this Court as being consistent with 11 U.S.C. 361, 363(c)&(e), and other applicable provisions of the Bankruptcy Code (e.g., 11 U.S.C. 552). Any such authorization to use cash collateral will extend through the conclusion of a continued hearing concurrent with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
Continue as set forth below. Appearances are not required on 7/7/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 5, as supplemented, dkt. 288), and
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East West Bank non-opposition (dkt. 289)
Grant on a further interim basis, on the same terms and conditions as previously ordered (dkt. 286), except for the revised budget (dkt. 288, Ex.A), and authorize the payment of previously-allowed professional fees as set forth therein, with such authorization to use cash collateral extending through the conclusion of a continued hearing concurrent with the continued status conference (see below).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith
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Juliet Y Oh
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Docket 41
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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to Excuse Requirement That Patient Care Ombudsman Be Appointed
Docket 28
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
John Martin Kennedy Represented By Sandford L. Frey
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YUNUUEN CAMPOS
vs DEBTOR
Docket 22
Tentative Ruling for 8/18/20:
Grant in part, deny in part, as set forth below. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Background
As a preliminary matter, this Court notes that Ms. Campos’ motion for relief from stay (dkt. 22, the "R/S Motion"), is not entirely clear about what relief Ms. Campos seeks. The R/S Motion represents that an appellate court has affirmed in part and reversed in part the trial court’s award of attorney’s fees and that "Campos has not received notice that remittitur issued and therefore has not yet filed a proposed Third Amended Judgment" (id., p.17:21-26), so perhaps Ms. Campos seeks relief to obtain entry of a final judgment with respect to the amount of attorney’s fees? This relief would be consistent with Ms. Campos’ statement in her unauthorized supplemental brief in support of the R/S Motion (see dkt. 35, p.5:12-13) ("Campos should be permitted to proceed to final judgment once and for all").
But the R/S Motion also describes Ms. Campos’ efforts to enforce an "April 26, 2016 Assignment Order," conduct post-judgment discovery regarding Debtor’s assets, and states that the day before a hearing on Ms. Campos’ motion for assignment order was scheduled to be heard Debtor filed this bankruptcy case (dkt. 22, p.18:1-11), so perhaps Ms. Campos also seeks
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relief for the State Court to rule on that motion and/or to allow her to continue enforcement efforts?
Meanwhile, Debtor has admitted that this case was filed to halt Ms. Campos’ collection efforts, to allow Debtor to file a motion to enforce and assume a mediation settlement agreement between Debtor and Ms. Campos and treat her claim through a chapter 11 plan of reorganization (dkt. 20, p.14). And this Court previously expressed its grave concerns about Debtor’s repeated bankruptcy filings and his conduct in past cases, which have undoubtedly frustrated Ms. Campos’ collection efforts (see tentative ruling for Calendar No. 12, 7/28/20 at 10:00 a.m., available at www.cacb.uscourts.gov).
Nevertheless, the tentative ruling is that it would be inappropriate to terminate the stay, at least unless and until this Court has had an opportunity to determine whether the parties’ have an enforceable settlement agreement, and whether Debtor can assume and enforce such an agreement, or alternatively if Debtor can propose an effective plan of reorganization.
Additionally, and alternatively, the tentative ruling is that at this early stage of the current case, the documents filed by Debtor so far appear to reflect proper prosecution of this current case and the potential, with appropriate safeguards to protect Ms. Campos and other creditors, for Debtor to propose a viable plan of reorganization without the distraction of having to defend himself against the state court proceeding.
Therefore, the tentative ruling is to modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that Debtor must set aside funds into a reserve account to be available for distribution to Ms. Campos (and any similarly situated creditors) as adequate protection of all of their interests, while this Court determines the enforceability of the parties’ Mediation Term Sheet and/or whether Debtor can propose an effective reorganization. The parties should be prepared to discuss what an appropriate frequency and dollar amount of payments would be to adequately protect Ms. Campos’ interests.
Legal analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson
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Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt." Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that on balance
these factors weigh in favor of granting only limited relief as set forth above. Most significantly:
As to the first Curtis factor (would relief result in partial or complete resolution of the issues?), if Ms. Campos seeks relief solely to obtain a final judgment in the State Court action, then granting relief would result in complete resolution of the issues and the issues can be resolved most expeditiously in the non-bankruptcy forum. Conversely, if Ms. Campos seeks relief for the State Court to rule on her motion for assignment order, then
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relief would only result in partial resolution of the issues.
As to the fourth Curtis factor (whether a specialized tribunal has been established to hear the action) and the eleventh Curtis factor (whether the proceedings have progressed to the point where the parties are prepared for trial), the tentative ruling is that, although not a specialized tribunal, the State Court is the only tribunal that can follow through with the appellate court mandate and enter final judgment with respect to the attorney’s fees award, and is the most appropriate forum for many post-judgment proceedings, although this Bankruptcy Court is the most appropriate forum for either enforcing any mediated settlement that allegedly was reached in Debtor's prior case, or for restructuring Debtor's financial obligations, if that can be done in an effective reorganization.
As to the seventh Curtis factor (prejudice to creditors and other interested parties), the tentative ruling is that granting relief would prejudice other creditors because it would distract Debtor from focusing necessary time and money towards either implementing the parties' alleged settlement or proposing a viable chapter 11 plan of reorganization.
As to the tenth Curtis factor (interest of judicial economy) and the twelfth Curtis factor (the impact of the stay on the parties and the "balance of hurt"), the tentative ruling is that granting more extensive relief from stay than what has been outlined above would impede the efficient administration of this case and place a greater burden on Debtor and all other creditors.
This Court agrees that factors 3, 5, 6, 8, and 9 are inapplicable.
Evidentiary objections
The tentative ruling is that none of the foregoing depends on this Court’s ruling on Ms. Campos’ evidentiary objections (dkt. 56). But, for completeness, the tentative ruling is with respect to Debtor’s declaration is to sustain those objections except to the extent that the statements at issue are offered solely for the purpose of establishing Debtor’s subjective state of mind for purposes of whether this case was filed in "good faith." With respect to Mr. Shinbrot’s declaration, the tentative ruling is to sustain the objections except to the extent that the statements at issue are offered solely for the purpose of establishing Mr. Shinbrot’s subjective state of mind. With respect to the Holmes’ declaration, the tentative ruling is to sustain the objection.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Please see the tentative ruling for Debtor's motion to continue the stay pursuant to 11 U.S.C. 362(c)(3) (Calendar No. 12, 7/28/20 at 10:00 a.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
Yunuen Campos Represented By Lauren A Dean
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Docket 1
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57)
There is no tentative ruling. The parties are directed to address the issues raised in Ms. Campos' opposition (dkt. 57). Debtor is also directed to explain the proposed expenditure of $800/mo. for "Personal Care, South Bay Family-Emily."
As to all questioned expenditures, Debtor is directed to address why they are monthly transactions "in the ordinary course" of Debtor's business (11 U.S.C. 363(c)(1)), or otherwise authorized by the Bankruptcy Code. See Dkt.51, Ex.A at p.6 (PDF p.7) (last line on page). See generally In re Villalobos, 2011 WL 4485793, 2011 Bankr.LEXIS 4329 (9th Cir. BAP August 19, 2011) (noting uncertain legal standards applicable to budget review); In re Seely, 492 B.R. 284, 290-291 (Bankr. C.D. Cal. 2013) (approval required for living expenses or other expenses out of ordinary course in individual chapter 11 case); In re Goldstein, 383 B.R. 496, 499 (Bankr. C.D. Cal. 2007) (same); and cf. In re Salazar, 465 B.R. 875 (9th Cir. BAP 2012) (citing cases re same in chapter 13). See also In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246)
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(permissible expenses for disposable income requirement in 11 U.S.C. 1129(a)(15)).
Patient care ombudsman motion (dkt. 28), proof of service (dkt. 37), no opposition is on file
The tentative ruling is to grant the motion.
Debtor's motion for leave to file documents under seal (dkt. 41), Yunuen Campos' response (dkt. 44), Debtor's reply (dkt. 45), order setting hearing (dkt. 47)
Debtor moves for an order authorizing him to file under seal a motion authorizing the assumption of a mediation term sheet between Debtor and Yuneun Campos. Ms. Campos objects to the admissibility of the mediation term sheet on the grounds that it is protected by the evidence exclusion provision pursuant to California Evidence Code section 1119. The tentative ruling is to grant the motion as follows.
(i) Applicable law
"Privileges are narrowly construed, because they impede the full and fair discovery of truth." Yeager v. Yeager, 2008 U.S. Dist. LEXIS 74245, at *3 (E.D. Cal. Sep. 25, 2008) (citing Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981)). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Id. (quoting Torney v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988)).
"Under Federal Rule of Evidence 501, privileges provided by state law apply in civil actions only ‘with respect to an element of a claim or defense as to which State law supplies the rule of decision." Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (citing Fed. R. Evid. 501; Breed v. U.S. Dist. Court for the N. Dist. Of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)). "State contract law governs how settlement agreements are construed and enforced, even if the underlying cause of action is federal." Karubian v.
Kaiser Ventures, LLC, 2018 U.S. Dist. LEXIS 235252, at *12 (C.D. Cal. Oct. 17, 2018) (citing United Commercial Ins. Serv., Inc., v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992)). Therefore, California privilege law applies.
Two relevant provisions apply. First, California Evidence Code § 1119 states, in relevant part:
Except as otherwise provided in this chapter: (a) No evidence of
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anything said or any admission made . . . in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . .
noncriminal proceeding (b) No writing . . . prepared in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the writing shall not be compelled in any . . . noncriminal proceeding . . . (c) All communications . . . by and between participants in the course of a mediation . . . shall remain confidential.
Second, California Evidence Code § 1123 states, in relevant part:
A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect.
This Court notes that the foregoing provisions are also consistent with the Rules 6.1 and 6.5 set forth in Appendix III of the Local Bankruptcy Rules, governing mediations in this district.
As the party asserting the privilege, Ms. Campos bears the burden of demonstrating that the exception set forth in California Evidence Code § 1123 do not apply. The tentative ruling is that Ms. Campos has not carried that burden. In support of her opposition, Ms. Campos simply concludes that "the requirements of California Evidence Code are not met to render any of the exhibits admissible" and "[t]here is no doubt the Mediation Term Sheet is inadmissible and confidential." Dkt. 44, p.3: 5-6 & 20-21. This is not sufficient.
Alternatively, the tentative ruling is that authorizing the Debtor to file the Mediation Term Sheet under seal will enable this Court to determine whether an exception to California Evidence Code § 1123 applies while still protecting the contents of the document from public disclosure.
Yunuen Campos' motion for relief from the automatic stay (dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56)
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The tentative ruling is to grant in part, deny in part, for the reasons
stated in the tentative ruling for that motion (Calendar No. 12, 8/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact
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CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget and Employment motions
As of the preparation of this tentative ruling, Debtor has not filed an employment application or a budget motion as required by Judge Bason's posted procedures (available at www.cacb.uscourts.gov). If these papers are not on file by the hearing date, the tentative ruling is to set a deadline of 8/4/20 to file those motions.
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 8/18/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 7/13/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash management motion (dkt. 14), order setting hearing on shortened time (dkt. 13)
There is no tentative ruling.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: TBD
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: TBD
Continued status conference: 7/28/20 at 1:00 p.m., status report due 7/14/20 on form(s) required by the Procedures Order. As stated in the Procedures Order, Debtor is required to personally appear (telephonically) at the status conference.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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a Budget for the Use of Debtor's Cash and Post-Petiton Income
Docket 51
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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fr. 6/30/20
Docket 121
Please see the tentative ruling for the status conference (Calendar No. 15, 8/18/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Docket 5
Tentative Ruling for 8/18/20:
Sustain the claim objections and continue the Status Conference as set forth below. Appearances required as to the Status conference, but not as to the claim objections. If you wish to dispute the tentative ruling as to the claim objections, you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Omnibus claim objection ("Claim Objection," dkt.121) by Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, Michael Criscione and Michael Meyer’s ("Claim Objectors"); stipulation & order continuing hearing (dkt. 129, 131); opposition (dkt.137) of Tarzana Crossing, a Merchant Faire, LLC ("Tarzana Crossing"); no reply is on file
Claim Objectors seek disallowance of the following Claims in full: Claim Nos. 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24,
25, 26, 27, 29, 31, 33, 34, 35, 36 and 37 (the "Claims"). The Claim Objectors assert three grounds for disallowance of all Claims:
(w) the Claims are "interests," not "claims" entitled to a pro rata distribution with other creditors,
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(x) the Claims fail to state an amount that is purportedly
claimed, and
the Claims are not supported by a copy of a writing as
required by Rule 3001(c)(1) (Fed. R. Bankr. P.). Dkt. 40, p.39.
The Claim Objectors also object to claims 24, 25, 26, and 37 on an additional ground:
that they are duplicative of claims previously filed by the holders of those claims. Id., p.40.
The tentative ruling is to sustain the Claim Objection as to all claims on ground "(w)." In addition, the tentative ruling, as to ground "(z)," is to sustain the objection insofar as disallowing the earlier version of each duplicative claim.
Legal standards for objections to claim
"The term 'claim’ is broadly defined to mean "a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secure, or unsecured . . . . " 11 U.S.C. 101(5)(A) (emphasis added). The term also broadly includes a "right to an equitable remedy for breach of performance . . . ." 11 U.S.C. 101(5)(B). "The Code utilizes this ‘broadest possible definition’ of claim to ensure that ‘all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." In re SNTL Corp., 571 F.3d 826, 838 (9th Cir. 2009).
Furthermore, "a claim may exist for bankruptcy and discharge purposes long before a cause of action accrues under nonbankruptcy law." Id., at 839. "It is only necessary that the creditor be able to fairly or reasonably contemplate the claim’s existence as of the petition date." Id.
The exclusive grounds under which a debtor may successfully object to a claim are listed in 11 U.S.C. 502(b). In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424, 435 (9th Cir. BAP 2005).
The Claims, apart from the Claim of Tarzana Crossing With the exception of the Tarzana Crossing Claim (Claim No.
/23-2) (discussed separately below), the tentative ruling is as follows.
The Claims are "equity interests" subject to mandatory subordination (11 U.S.C. 510(b))
Claim Objectors assert that the Claims should be disallowed because they are "interests" rather than "claims." The tentative ruling is that this is
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correct: the Claims are, by their own admission, equity interests and, as such, must be subordinated to general unsecured claims pursuant to 11 U.S.C.
510(b). See e.g. In re Tristar Esperanza Props., LLC, 782 F.3d 492 (9th Cir. 2015) (a claim arising from an equity interest in a limited liability company is subordinated to general unsecured creditors). See also dkt. 1, PDF pp.11-15 (Debtor's listing of alleged claims as equity interests on bankruptcy schedules).
Duplicate claims are properly disallowed
Claim Objectors assert that claim 24-1 is a duplicate of claim 19-1, that claim 25-1 is a duplicate of claim 20-1, that claim 26-1 is a duplicate of claim 18-1, and that claim 37-1 is a duplicate of claim 35-1. The tentative ruling is to grant the objection in substance by treating the later filed claims as amendments to the earlier filed claims, and then disallowing the earlier filed claims as duplicative (i.e., disallow claims 18-1, 19-1, 20-1, and 35-1).
The fact that a claim is contingent is not a proper basis to disallow a claim under section 502(b)(1)
Section 502(b)(1) provides that a claim is not allowable if it is unenforceable under the applicable agreement or law "for a reason other than because such claim is contingent or unmatured." 11 U.S.C. 502(b)(1). "Under section 502(b)(1), [ ] contingent claims cannot be disallowed simply because the contingency occurred postpetition." SNTL Corp., 571 F.3d at 838.
Therefore, the tentative ruling is to overrule Claim Objectors' request to disallow the Claims based on the fact that fail to state the amount of their respective claims.
Failure to attach supporting documentation is not a sufficient basis to disallow a claim
Under Heath, "a request for complete disallowance of the claim merely because of inadequate documentation" is not a proper objection. 331 B.R.
424, 435. Accordingly, the tentative ruling is to overrule the Claim Objectors' request to disallow the Claims on the grounds they are not supported by copies of the operating agreement.
The Tarzana Crossing Claim
Tarzana Crossing opposes the Claim Objection on the grounds that its
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claim (Claim 23-2) "is not based on an equity interest in [Debtor] alone," but is also "based on the same pre-petition claims for which Tarzana Crossing filed suit long before this bankruptcy case was filed " Dkt. 137, p.6:3-5
(emphasis added). But the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") considered and rejected similar arguments in Tristar, 782 F.3d 492.
In Tristar, the Ninth Circuit affirmed the lower courts' determination that 11 U.S.C. 510(b)'s mandatory subordination applied to the claim of a former member of the debtor limited liability company (the "LLC") who obtained a judgment valuing her equity interest after the LLC did not honor a provision in its operating agreement requiring a buy-back of the withdrawing member’s interest. Id. The Ninth Circuit confirmed that § 510(b) "sweeps broadly" (id. at 495) and held that "the critical question for purposes of § 510(b) is not
whether the claim is debt or equity at the time of the petition, but rather whether the claim arises from the purchase or sale of a security" and concluded that the "claim must be subordinated if there is a sufficient ‘nexus or causal relationship between the claim and the purchase’ or sale of securities." Id. at 497 (citation omitted).
The tentative ruling is that Tarzana Crossing’s State Court claims are all directly related to and "arise from" its purchase of "security of the debtor" and Tarzana Crossing has not demonstrated that any damages it might recover from the State Court action against the Debtor would be anything but "damages arising from the purchase . . . of such a security." See 11 U.S.C. 510(b).
Therefore, the tentative ruling is to sustain the Claim Objectors' objection to the Tarzana Crossing Claim and order Claim 23-2 subordinated to general unsecured claims pursuant to 11 U.S.C. 510(b).
The tentative ruling is to deny the Claim Objectors' objection to this claim on all other grounds, for the reasons stated above.
Proposed order: The Claim Objectors are directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
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Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m. Brief written status report due 10/13/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Missing Status Report
This Court's tentative ruling for 6/2/20 (see below, section 2(d)) directed Debtor to file a status report by 6/16/20. No party contested that tentative ruling, so it became this Court's final ruling. But as of the preparation of this tentative ruling, no status report is on file. Why not?
Missing Monthly Operating Reports ("MORs")
As of the preparation of this tentative ruling, Debtor has not filed an MOR for the months of April or May 2020. Why not? What remedies should
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this Court impose?
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 8/18/20 at 1:00 p.m., concurrent with other matters. Brief written status report due 8/4/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20, 5/12/20, 6/30/20
Docket 7
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 17, 8/18/20 at 1:00 p.m.).
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 14, 6/30/20 at 1:00 p.m.).
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 14, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the adversary status conference (Calendar no. 26, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Movant(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
1:00 PM
Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which was been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). On 8/4/20, Debtor filed a status report (Main Case, dkt. 136, p.4:22-26) stating that "the parties were unable to resolve their disputes [at the mediation, but] are continuing to make efforts to resolve their disputes through Mr. Gould."
There is no tentative ruling, but the parties should be prepared (a) to provide this Court with any updates on the status of those negotiations (if any) and (b) to address whether this matter should be further continued or this Court should rule on the merits of the Remand Motion.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which has been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). The tentative ruling is to continue this matter to the same date and time as the continued status conference (see calendar no.15, 6/30/20 at 1:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 5/12/20:
Continue to 6/30/20 at 1:00 p.m. to allow time for the parties to participate in a second round of mediation. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
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Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC ("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows. Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
(1) a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal quotation omitted).]
These elements are satisfied: (1) the motion was timely - the proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14)
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are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court,
(5) the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
Several of the Tucson factors weigh in favor of abstention. First, the Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main
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bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR
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Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
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Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
2:00 PM
8/20/19, 9/17/19, 10/15/19, 10/29/19, 12/10/19,
1/28/20, 03/31/20, 6/16/20
Docket 5
Tentative Ruling for 8/18/20:
Continue to 10/6/20 at 2:00 p.m., with no written status report required. Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC
2:00 PM
APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion of the United States Trustee ("UST") to convert, dismiss, or appoint a Chapter 11 trustee (the "UST Motion", dkt. 76)
Debtor's counsel is directed to address (i) the status of his efforts re determining the amount of tax claims and (ii) whether Debtor intends to proceed with a structured dismissal as contemplated by this Court at the 12/10/19, 1/28/20, and 3/31/20 hearings.
Deadlines/dates. This case was filed on 12/17/18.
Bar date: 7/24/19 (not timely served but excused, dkt. 120)
Plan/Disclosure Statement*: N/A
Continued status conference: if this case is not dismissed by then, or a continued status conference is not otherwise mooted, set a continued status conference for 8/18/20 at 2:00 p.m., with no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior Tentative Rulings omitted]
2:00 PM
Debtor(s):
Jackies Cookie Connection LLC Represented By
Derrick Talerico Marlee E Sherman Michael S Kogan David B Zolkin
2:00 PM
Docket 134
Please see the tentative ruling for the status conference (calendar no. 3, 8/18/20 at 2:00 p.m.)
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19,
3/10/20, 6/16/20
Docket 5
Tentative Ruling for 8/18/20:
Continue as set forth below. Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Pre-trial conference
Continue to the same date and time as the continued status coference as set forth below.
Status Report (dkt. 173)
Debtor's status report requests that this Court set dates for balloting and plan confirmation trial. The status report also states that the parties have contacted the mediation, but have not yet attended mediation due to COVID 19.
The tentative ruling is that it is premature to set dates for balloting and plan confirmation trial prior to the parties attending mediation.
2:00 PM
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: See above
Continued status conference: 9/29/20 at 2:00 p.m., no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
fr. 03/10/20, 05/19/20, 06/30/20, 7/28/20
Docket 270
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar no. 5, 8/18/20 at 2:00 p.m.).
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the status conference (Calendar no. 7, 7/28/20 at 2:00 p.m.).
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Docket 270
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Debtor's brief re liability of Nationstar Mortgage, LLC for damages for contempt (violation of discharge injunction) (dkt. 320), Nationstar's opposition (dkt. 321), Debtor's reply (dkt. 322)
This Court anticipates issuing a ruling prior to the hearing. At the hearing this Court anticipates addressing next steps with the parties.
Debtor's bill of costs (dkt. 296)
Pursuant to Rule 8021(a)(4) (Fed. R. Bankr. P.) costs are "only as
the ... BAP orders." This Bankruptcy Court is not aware of any such order by the BAP; but Debtor filed a "Bill of Costs" (dkt. 296), objections were due within fourteen days (Rule 8021(d)), and no objection was filed, so the tentative ruling is to interpret the BAP's remand as providing discretion to this Bankruptcy Court to award costs, and alternatively the tentative ruling is to consider any objections waived and forfeited, and on both alternative grounds the tentative ruling is to award Debtor his requested costs of $484.50.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Debtor's brief re liability of Nationstar Mortgage, LLC for damages for contempt (violation of discharge injunction) (dkt. 320), Nationstar's opposition (dkt. 321), Debtor's reply (dkt. 322)
Scope of remand
The tentative ruling is that the parties should be prepared to address whether (i) there is any dispute that the Bankruptcy Appellate Panel ("BAP") determined that the actual meaning of the confirmed chapter 13 plan and the confirmation order was to reduce the amount of the debt secured by Nationstar's lien, such that when that debt was paid the lien automatically became void, and (ii) the BAP remanded the matter to this Court to address whether Nationstar's understanding of whether the discharge injunction applied was or was not objectively reasonable, and thus whether Nationstar is subject to contempt sanctions.
No further evidence regarding whether Nationstar is subject to contempt sanctions; but further evidence might be appropriate on other issues
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The tentative ruling is also that, because the record for this matter was closed when this Court took the matter under submission, prior to the appeal to the BAP, therefore no further evidence is appropriate regarding whether Nationstar is subject to contempt sanctions. But, if it is subject to sanctions, then the tentative ruling is that further evidence and an evidentiary hearing may be appropriate regarding the dollar amount of any compensatory damages and any other damages or sanctions. Those issues can be addressed at a future hearing, if appropriate, and meanwhile the tentative ruling is that the scope of this hearing is limited to whether Nationstar is subject to contempt sanctions.
Merits
There is no tentative ruling on the merits of that question. This Court has reviewed the parties' briefs, and the parties are invited to make brief oral arguments, following which this Court anticipates taking the matter under submission, and setting a continued hearing date of 8/18/20 at 2:00 p.m. at which the parties and this Court can address next steps in view of whatever Memorandum Decision this Court issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/19/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address the issues raised in this Court's Order Setting Status Conference (dkt. 297).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20
Docket 247
Please see the tentative ruling for the status conference (Calendar no. 7, 8/18/20 at 2:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
Docket 49
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272)
There is no tentative ruling. The parties are directed to address Debtor's revisions to her Plan and Debtor's Plan Hearing Request.
Debtor's possibly unauthorized activities
The Plan states that Debtor "continues to engage in activities to develop additional business opportunities to add to her business endeavors and income." Dkt.270, p.1 (last sentence). Debtor is directed to address in detail what this means, and whether there is any danger that third parties dealing with Debtor might misunderstand her very limited authority to do anything in this case, in light of this Court's orders removing her as debtor in possession and expanding the duties of the Subchapter V Trustee (dkt.232) and Debtor's history of failing to disclose or obtain authorization for
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transactions out of the ordinary course of her business. See generally
Memorialization of Tentative Rulings (dkt.208).
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: dkt. 246, 247
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Subchapter V Trustee's application to employ real estate broker for Laurel Property (the "Broker Application," dkt. 242), Debtor's opposition (dkt.
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248), Celtic Bank's response to Debtor's opposition ("Celtic's Broker Response," dkt. 254), Subvchapter V Trustee's reply ("Trustee's Broker Response," dkt. 257)
Grant the Broker Application, for the reasons set forth below, subject to
(i) Judge Bason's standard conditions, including no dual agency, and (ii) filing of Local Form F2014-1 (saying only "see Application" - unless there are matters that were not disclosed in the Application), all as required by the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov). Appearances required.
Debtor's small business chapter 11 plan ("Plan," dkt. 246), request to set hearing on confirmation and related deadlines ("Plan Hearing Request," dkt. 247), and Celtic's Broker Response (regarding employment of real estate broker to sell the property instead of pursuing the Plan) (dkt. 254), and the Trustee's Broker Response (dkt. 257)
Deny the Plan Hearing Request, without prejudice. Appearances required.
Procedural issues
The tentative ruling is that Debtor's Plan Hearing Request is properly addressed at this Status Conference. True, it has not been specifically set for hearing on 7/28/20, nor has Debtor lodged any proposed order granting that request on an ex parte basis. But the tentative ruling is that this is exactly the type of procedural issue that is properly addressed at this Status Conference, and therefore it is appropriate to reach the merits of the Plan Hearing Request. The tentative ruling is that, for the same reasons, it is appropriate to consider Celtic's Broker Response and the Trustee's Broker Response because they bear on the Plan Hearing Request.
Although the Plan Hearing Request has some merit, the tentative ruling is that the Plan on its face is unconfirmable due to its lack of provision for administrative claims and, alternatively, due to the facially valid claims for default interest and attorney fees
On the one hand, Debtor's proposed Plan appears to have many elements of what might have been required from the outset of this case. Those elements include: (x) a substantial proposed one-time contribution from Debtor's business partner, so as to be able to make "down payments" to secured creditors, (y) additional substantial ongoing contributions, and a projected return to more normal rental income, so as to be able to make
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ongoing monthly payments, and (z) future potential refinancing(s) to pay off claims.
None of the foregoing is intended to disregard the substantial hurdles to confirming any proposed plan. This Court recognizes those hurdles - but the question is not whether to confirm the Plan today; rather it is whether to set a hearing to address whether or not to confirm the Plan.
On the other hand, there is no point is setting such a hearing if the Plan is unconfirmable on its face. The tentative ruling is that, for at least the following reasons, the Plan cannot be confirmed.
First, as both Celtic Bank and the Subchapter V Trustee point out Debtor's Plan does not set aside an estimated dollar amount for administrative expenses.
Second, as Celtic Bank points out (dkt.254, p.3:6-11), it has a substantial claim for pre- and postpetition default interest on its fully matured loan, as well as attorney fees. In general, claims for both prepetition and "pendency" default interest on oversecured claims are allowed in bankruptcy cases, as are attorney fees, up to the value of the collateral. So any debtor either has to take steps quickly to stop the running of that interest - such as a section 363 sale, a refinance, or a confirmable plan - or else that debtor has to pay that interest in full (up to the value of the collateral). See generally In re Aarons (Case 2:19-bk-18316-NB), dkt. 268, pp.9:13-10:8.
The tentative ruling is that the Plan must, but does not, provide for payment of administrative expenses and Celtic's default interest and attorney fees. Nor does the Plan or any other filed document known to this Court provide a basis for this Court to presume that the very large proposed contributions would be increased by enough to cover the shortfall. Therefore, the tentative ruling is that it would be a waste of time and resources to set a hearing on confirmation of Debtor's proposed Plan at this time, so the Plan Hearing Request must be denied.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: dkt. 246, 247
Continued status conference: 9/15/20 at 1:00 p.m. No written
2:00 PM
status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Case progress
At the last hearing on 6/5/20, this Court removed debtor as debtor in possession and expanded the powers and duties of the Subchapter V Trustee (see dkt. 232). There is no tentative ruling, but the parties should be prepared to update this Court on any progress that has occurred since the last hearing.
The parties also should be prepared to address whether this Court should set a new deadline for Debtor to file an amended disclosure statement and amended plan at this time.
Motion for relief from stay by Mr. Tremblay as trustee (as amended, dkt. 93), debtor's supplemental declaration (dkt. 129), previously-filed papers
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(see tentative ruling for 3/3/20, reproduced at calendar no. 10, 6/16/20 at 1:00 p.m)
The tentative ruling is to take this motion off calendar, without prejudice to filing any amended motion for relief from the automatic stay in future. The reasons are as follows.
At prior hearings this Court was persuaded to continue this matter. As for Debtor's alleged bad faith, the tentative ruling is that any bad faith by Debtor herself is no longer sufficient cause for relief from the automatic stay because this Court has removed Debtor as a debtor in possession - although, if Debtor were to fail to cooperate with the Subchapter V Trustee, or otherwise fail to comply with her ongoing duties, that might change. As for valuation of the property, the tentative ruling is that it is premature to address that issue, until the Subchapter V Trustee has had an opportunity to explore options for dealing with the property and negotiating with creditors.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: TBD (prior, insufficient versions were filed 4/15/20, dkt. 171, 172)
Continued status conference: 7/28/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
2:00 PM
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
fr. 7/14/20, 7/28/20
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
7/14/20, 7/28/20
Docket 43
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 8/18/20 at 2:00 p.m.)
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 18, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 7/14/20 at 2:00 p.m.)
Tentative Ruling for 5/19/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 6, 5/19/20 at 11:00 a.m.)
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 5/12/20 at 11:00 a.m.)
Tentative Ruling for 4/7/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 9, 4/7/20 at 11:00 a.m.)
Tentative Ruling for 2/18/20:
2:00 PM
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 11/12/19 at 2:00 p.m.)
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 13, 9/24/19 at 2:00 p.m.)
Tentative Ruling for 8/20/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 8/20/19 at 2:00 p.m.)
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 7/2/19 at 2:00 p.m.)
Tentative Ruling for 6/4/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 6/4/19 at 2:00 p.m.)
Tentative Ruling for 5/21/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 12, 5/21/19 at 2:00 p.m.)
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Tentative Ruling for 4/30/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 4/30/19 at 11:00 a.m.)
Tentative Ruling for 4/9/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 10, 4/9/19 at 11:00 a.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
non debtor Aston Business Solutions, Inc. fr. 7/14/20, 7/28/20
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20, 7/14/20, 7/28/20
Docket 332
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
The parties are directed to address the status of their settlement efforts.
Dates/deadlines
After addressing the foregoing, the tentative ruling is to continue the status conferences on calendar for today to 9/29/20 at 2:00 p.m., with no status reports required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
7/14/20, 7/28/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr
2:00 PM
Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20
Docket 1
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 8/18/20 at 2:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the main case status conference (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the main case status conference (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the main case status conference (calendar no. 23, 12/17/19 at 2:00 p.m.)
Tentative Ruling for 11/12/19:
Please see the tentative ruling for the main case status conference (calendar no. 12, 11/5/19 at 2:00 p.m.).
Tentative Ruling for 9/24/19:
Please see the tentative ruling for the adversary status conference (calendar no. 16, 9/24/19 at 2:00 p.m.).
2:00 PM
Tentative Ruling for 8/20/19:
Please see tentative ruling for the adversary status conference (calendar no. 15, 8/20/19 at 2:00 p.m.).
Tentative Ruling for 8/6/19 [N/A: continued to 8/20/19 at 2:00 p.m. by this Court]
Tentative Ruling for 7/2/19:
At the 6/4/19 hearing this Court took the Motion for Summary Judgment (adv. dkt. 98) under submission and anticipates issuing an order at a later time.
Tentative Ruling for 6/4/19:
[No tentative ruling was posted]
Tentative Ruling forn 5/21/19:
Appearances are not required on 5/21/19. The tentative ruling is to continue the hearings in these related adversary proceedings (calendar no. 13 & 14, 5/21/19) to the date of the continued status conference (see below).
Current issues
The tentative ruling on the Motion to Compel (dkt. 104) and the Order to Show Cause ("OSC," dkt. 107) is to continue these matters as requested in the response of Aston Business Solutions, Inc. (dkt. 110, 111). This Court contemplates that the deadlines for completion of discovery and other matters will need to be extended, and the parties are directed to meet and confer and, if they can agree to new deadlines, lodge a proposed order. If they cannot agree, this Court anticipates setting new deadlines at the continued status conference.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90).
2:00 PM
Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90). Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90).
Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 6/11/19 at 2:00 p.m. No written status
report required.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 4/30/19:
Continue as set forth below. Appearances are not required on 4/30/19.
This Court has reveiewed the latest filed documents in this adversary proceeding and is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17.
2:00 PM
Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
Continued status conference: 5/21/19 at 11:00 a.m., with a brief status report due by 5/7/19.
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Supplemental Tentative Ruling for 4/9/19:
The original tentative ruling (below) provides two inconsistent dates for a continued status conference: 4/30/19 at 11:00 a.m., 4/7/19 at 11:00 a.m.
The latter [should be "former"] is correct. No status report required.
Tentative Ruling for 4/9/19:
Deny the motion to quash (with the possible exception of one aspect), address procedural issues, and then continue this Status Conference, all as set forth below. Appearances required.
Current issues:
Procedures
2:00 PM
Please see the tentative ruling for the main case status conference
(calendar no. 10, 4/9/19 at 11:00 a.m.)
Motion to Quash (adv. dkt. 84)
The tentative ruling is that the motion to quash (adv. dkt. 84) by Aston Business Solutions, Inc. ("ABS") is unpersuasive, except perhaps for limitations as to time, which the parties are directed to address at the hearing.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling. See LBR 9021-1(b)(1)(B).
Analysis re motion to quash
ABS asserts only vague objections:
Competitors?
ABS asserts that it and Plaintiff are competitors. How so?
The motion does not even disclose ABS' business. Is it a timeshare owner? Is it a timeshare operator? Is it something else? (As noted below, this Court expects that it has gleaned the answer from other documents, but the tentative ruling is that this lack of even such basic information in the motion is fatal to this argument.)
Protected information?
ABS alleges that some sort of trade secrets or other confidential, privileged, or other type of protected information is involved. What sort of information? Why would a traditional privilege log and other tools be inadequate?
ABS complains that parties in interest in this bankruptcy case have shared information. But ABS fails to point to any prohibition on sharing information.
Burden?
ABS alleges that the requested discovery is unduly burdensome. How so? Is it stored in thousands of boxes of paper files that are difficult to reach and review for some reason?
Vagueness and overbredth?
ABS alleges that the discovery requests are vague and overbroad. How so? ABS fails to provide any explanation or evidence to support this allegations.
Discussion
2:00 PM
Based on a question (not an answer) in excerpts from the deposition of ABS' President and shareholder, Glenn Chaffin, ABS may be a marketing company for "timeshare exit companies." Adv. dkt. 84, Ex.1 (Depo. Tr.
1/24/19), p.95:22-23. But how does that make ABS a "competitor" of Plaintiff, with information that would constitute trade secrets, as opposed to a faciliatator of (possibly) legitimate ways to exit timeshares, who sends out
non-secret flyers and other publicly known marketing materials, and assists timeshare members in navigating contracts that are known to all the parties?
Such a facilitator theoretically could benefit Plaintiff, by replacing non- paying or troubled members with paying ones - unless, of course, ABS engages in acts that improperly interfere with contractual relations or otherwise assists in the wrongdoing of which Plaintiff accuses Defendants.
Plaintiff's discovery appears to be targeted at discovering information that could lead to admissible evidence on this and other relevant issues.
Accordingly, the discovery appears to be entirely proper and appropriate, with the possible exception of the movant's request to impose some limitations as to time, which the parties are directed to address at the hearing.
Adversary proceeding status conference issues
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90).
Continued status conference: 4/30/19 at 11:00 a.m., no status report required.
Dispositive motions to be heard no later than: TBD Joint Status Report: N/A
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No. 2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB,
2:00 PM
dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/19:
Continue as set forth below. Appearances are not required on 3/26/19.
This Court has reveiewed the latest filed documents in this adversary proceeding, includings the parties' status reports (dkt. 89, 91). This Court is not aware of issues that would warrant a status conference at this time.
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 6/15/19 (adv. dkt. 90). Expert(s) - deadline for reports: 6/28/19 (adv. dkt. 90).
Expert(s) - deadline for rebuttal reports: 7/26/19 (adv. dkt. 90). Dispositive motions shall be filed no later than: 8/22/19 (adv. dkt. 90). Dispositive motions to be heard no later than: TBD
Joint Status Report: N/A
2:00 PM
Continued status conference: 4/7/19 at 11:00 a.m., to be concurrent
with certain objections to claims (Case No. 2:16-bk-21559-NB, dkt. 310, 312), certain defendants' motion to quash (adv. dkt. 84), and a motion to dismiss the jointly administered bankruptcy case of Attitude Marketing, Inc. (Case No. 2:19-bk-10552; motion filed on the docket in Case No. 2:16-bk-21559-NB, dkt. 307, 318).
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/26/19:
This Court has reviewed the parties' joint status reports (dkt. 74, 75) and the other filed documents and records in this adversary proceeding. It appears there is little to address at this status conference, but this Court is requiring appearances to assure that this matter is moving forward. Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 6, 11, 24).
Deadlines
2:00 PM
This adversary proceeding has been pending since 4/7/17. Discovery cutoff (for completion of discovery): 4/15/19 (adv. dkt. 59). Expert(s) - deadline for reports: 4/29/19 (adv. dkt. 59).
Expert(s) - deadline for rebuttal reports: 5/27/19 (adv. dkt. 59). Dispositive motions shall be filed no later than: 7/1/19 (adv. dkt. 59). Dispositive motions to be heard no later than: TBD
Joint Status Report: 3/12/19.
Continued status conference: 3/26/19 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/29/19:
Continue to 2/26/19 at 11:00 a.m., in view of the extended deadlines (adv. dkt. 59) and the anticipated motion for joint administration with a case before Judge Russell (adv. dkt. 74). Appearances are not required on 1/29/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
2:00 PM
[PRIOR TENTATIVE RULINGS OMITTED FOR BREVITY]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 7/14/20, 7/28/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
2:00 PM
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20
Docket 1
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 8/18/20 at 2:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 11, 2/18/20 at 2:00 p.m.)
Tentative Ruling for 1/14/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 4, 1/14/20 at 2:00 p.m.)
Tentative Ruling for 12/17/19:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 23, 12/17/19 at 2:00 p.m.).
Tentative Ruling for 12/4/19:
Appearances required but telephonic appearances are encouraged if advance arrangements are made (see www.cacb.uscourts.gov, "Judges," "Bason, N.", "Instructions/Procedures").
Trustee's emergency motion for an order allowing Trustee to ascertain and preserve the status quo condition of Aston Business Solutions, Inc. (adv.
2:00 PM
dkt. 82)
There is no tentative ruling, but the first issue this Court will address is whether to hear the merits of the motion on such an expedited schedule.
Then, if appropriate, this Court will address the merits of the motion and any oral or written opposition and reply.
Status Conference in Adversary Proceeding (2:17-ap-01545-NB)
Continue this status conference to 12/17/19 at 2:00 p.m., to be concurrent with other matters.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[Prior tentative rulings omitted]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
2:00 PM
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
Freda Wang, (iii) Thomas Polis, (iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions
Docket 173
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
9:00 AM
fr. 6/8/20
Docket 66
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Movant(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
9:00 AM
consolidate debtor Attitude Marketing, Inc. with non debtor Aston Business Solutions, Inc.
fr. 7/14/20
Docket 422
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
7/14/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
9:00 AM
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
8:30 AM
debtor's principal residence with BCMB1 Trust
Docket 12
Continue to 10/22/20 at 8:30 a.m. to address the following issues. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Appraisal; date of valuation. The junior lienholder has requested (dkt.
22) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you
8:30 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria D. Gomez Represented By
Leroy Bishop Austin
Joint Debtor(s):
Jose Meneses Represented By
Leroy Bishop Austin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 49
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (in addition to motion papers): Raeisi Group Inc.'s opposition papers (dkt. 52-59), Debtor's notice of hearing (dkt. 64), no reply is on file
Current issues
Debtor seeks an order under 11 U.S.C. 522(f) avoiding two judgment liens against Debtor’s residence, located at 1316 Irving Avenue, Glendale, California 91201 (the "Property"), recorded in favor of Raeisi Group, Inc. ("Lienholder"): (w) a judgment lien (the "Non-Debtor Lien") securing a
$470,145.31 judgment entered against Debtor’s non-filing spouse, Erik Hovsepian (the "Non-Filing Spouse") and (x) a judgment lien securing a
$57,910.31 judgment entered against Debtor (the "Debtor Lien").
Legal standard
Section 522(f) provides, in relevant part, that a debtor:
May avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
8:30 AM
(A) a judicial lien [11 U.S.C. 522(f)]
Section 522(f)(2) provides a formula for calculating the extent to which a lien impairs an exemption: add the lien, all other liens on the property, and the amount of the exemption that the debtor could claim if there were no liens on the property and then subtract from that amount the value of the debtor’s interest in the property in the absence of any liens. In re Meyer, 373 B.R. 84, 86 (9th Cir. BAP 2007); In re Pike, 243 B.R. 66, 71 (9th Cir. BAP 1999).
When multiple liens are involved, there is authority that the liens must be "subtracted in order of reverse priority." In re Hanger, 217 B.R. 592, 595 (9th Cir. BAP 1997), aff'd, 196 F.3d 1292 (9th Cir. 1999). See also In re Heaney, 453 B.R. 42, 48 (Bankr. E.D.N.Y. 2011) (same).
Procedural issues
Debtor did not comply with Local Bankruptcy Rule ("LBR") 4003-2(b) (1), which requires a separate notice and motion for each lien that is sought to be avoided. The tentative ruling is to excuse Debtor’s non-compliance because it does not appear to have prejudiced Lienholder, but Debtor’s counsel is cautioned that failure to comply with applicable rules in future may result in adverse consequences.
Alternatively, the tentative ruling is that Lienholder has waived and forfeited any assertion of prejudice because this issue was not raised in its’ opposition papers.
The Property is property of the estate
Debtor states that she purchased the Property with her then-husband, now estranged, in April 2008, and that title to the Property is in the name of Erik Hovsepian and Elin Khachatourian Family Trust. Dkt. 49, pdf. p. 5, para.
7. Debtor asserts a community property interest in the Property. Dkt. 15, p.12.
Although not raised by either party, the tentative ruling is that the Property is property of the estate, notwithstanding the form of title. See Cal. Fam. Code 760 (Under California law, all property acquired by a spouse during marriage is presumptively community property); Cal. Fam. Code 761(a) ("[u]nless the trust instrument . . . expressly provides otherwise, community property that is transferred in trust remains community property during the marriage . . . if the trust . . . is revocable "); 11 U.S.C. 541(a)
(1)&(2) (property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case," and "[a]ll interests of the debtor and the debtor’s spouse in community property as of the
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commencement of the case "); In re Brace, 9 Cal.5th 903 (Cal. Supreme
Ct. 7/23/2020); In re Cutter, 398 B.R. 6, 19 (9th Cir. BAP 2008) (citing 11
U.S.C. 541(a)(1) and (c)(2)) ("While assets transferred to a trust do not ordinarily become property of the bankruptcy estate of the trust’s trustee, powers that a debtor is a trustee of a trust may exercise for his or her own benefit become property of the estate" and "to the extent a debtor holds a beneficial interest in a trust, that beneficial interest becomes property of the estate, unless it is protected by a valid spendthrift provision").
Avoidability of the Non-Debtor Lien
Lienholder argues that Debtor cannot use section 522(f) to avoid the Non-Debtor Lien because the lien secures a judgment against Debtor’s Non- Filing Spouse who is not a debtor in bankruptcy nor a party to this motion.
Dkt. 52, p.2:19-23. Lienholder also argues that the Non-Debtor Lien is not avoidable because Debtor’s Non-Filing Spouse would be prohibited from avoiding the lien if he were to commence his own chapter 13 bankruptcy case because the debt is nondischargeable under 11 U.S.C. 523(a)(4). Id. p.
9:18-10:13. In support of this argument, Lienholder relies on the non-binding case of Castle v. Parrish, 29 B.R. 869, 874 (Bankr. S.D. Ohio 1983). But Castle is inapplicable, because it involves the avoidability of a lien securing child support, which is a debt "of a kind that is specified in section 523(a)(5)," and which section 522(f)(1) unambiguously excepts from avoidance. See 11
U.S.C. 522(f)(1)(A) (. the debtor may avoid the fixing of a lien on an interest
of the debtor in property to the extent that the lien impairs and exemption to which debtor would have been entitled under subsection (b), if such lien is – a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)") (emphasis added). Although Lienholder argues that its judgment against Debtor’s Non-Filing Spouse is nondischargeable under 11 U.S.C. 523(a)(4), Rule 7001(6) (Fed. R. Bankr.
P.) would require the initiation of an adversary proceeding for any determination of nondischargeability in bankruptcy. See In re Kimmel, 367
B.R. 174, 180-81 (Bankr. N.D. Cal. 2007) (reviewing procedures for nondischargeability action against non-debtor spouse).
In addition, dischargeability is not at issue. That is an "in personam" concept, but Debtor seeks an "in rem" remedy: avoiding the Non-Debtor Lien on estate Property. Accordingly, the tentative ruling is that any issues regarding the dischargeability of Lienholder’s debts against the Non-Filing Spouse are not properly before this Court in this hearing.
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The tentative ruling is also that on the issue of avoidability, Debtor can avoid the Non-Debtor Lien if Debtor can establish that it impairs her claimed homestead exemption. See, e.g., In re Obedian, 546 B.R. 409, 423-25 (Bankr. C.D. Cal. 2016) (concluding that debtor could avoid judicial lien against non-filing spouse because lien attached to community property interests as a debt incurred during marriage and, because the property was property of the estate, the lien impaired debtor’s exemption).
Valuation
Debtor asserts that to the extent the liens exceed the $66,761.28 equity in the Property after deducting senior liens and Debtor’s homestead exemption from Debtor’s alleged $935,000 fair market value, Lienholder’s liens are avoidable. Dkt. 4, p. 4. Conversely, Lienholder argues that the Property is actually worth $1,315,000, and therefore do not impair Debtor's homestead exemption in any amount. Dkt. 55.
The parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 16
Grant, setting the value of the 2016 Chevrolet Silverado 1500 Crew Cab at
$16,150.00. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Erik Dye Represented By
David Samuel Shevitz
8:30 AM
Joint Debtor(s):
Monica Dye Represented By
David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
Continue to 9/24/20 at 8:30 a.m., and set a deadline of 9/10/20 for Debtor to file and serve a declaration addressing the issues below. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Missing copy of appraisal
Debtor states that she had her car appraised at CarMax on June 10, 2020, and that a copy of that appraisal is attached to the motion as Exhibit B. Dkt. 29, p.5, para. 5.
There are no exhibits attached to the motion.
Valuation method Under 11 U.S.C. 506(a):
If the debtor is an individual in a case under chapter 7 or 13, [the] value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition ... With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail
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merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. [11 U.S.C. 506(a)(2) (emphasis added)].
Debtor states that her vehicle was appraised at $4,500. Id. Debtor does not specifically state whether that appraisal value was the replacement value, as determined by the price a retail merchant would charge, or some other valuation method. But based on Debtor's declaration it appears that she has used the trade-in value for the vehicle, which does not comply with the above-quoted statutory provisions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jannie T. Murillo Represented By Chirnese L Liverpool
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
of extension to file credit counseling certificate
Docket 29
Debtor(s):
Tonya Elaine Crawford Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
Debtor(s):
Elias Robert Abu Shanab Represented By Heather J Canning
Joint Debtor(s):
Sarah Rhea Abu Shanab Represented By Heather J Canning
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 66
- NONE LISTED -
Debtor(s):
Melanie Honey Adler Represented By Steven L Bryson
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 82
- NONE LISTED -
Debtor(s):
Jennifer Johanna Haas Represented By Caroline S Kim
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
- NONE LISTED -
Debtor(s):
Juan Martin Licerio Represented By Julie J Villalobos
Joint Debtor(s):
Kathy Deanna Rodriguez Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 73
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Deepak Sagar Represented By Madhu Kalra
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
8:30 AM
Docket 44
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Order setting hearing (dkt. 47), declaration of Daniel King (dkt. 49).
Reasons:
This Court has reviewed the Declaration of Daniel King (dkt. 49) addressing the issues raised in this Court's order setting the matter for hearing (dkt. 47).
The tentative ruling is that (i) Mr. King cannot charge Debtor or the bankruptcy estate for any time spent on the Dismissal Motion, including preparing for and attending the hearing (if applicable), because any such billing would be unreasonable in view of the inaccurate representation by Mr.
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King; but Mr. King can charge fees and expenses in the normal course for unrelated matters; and (ii) Mr. King is cautioned that failure to make accurate representations in pleadings filed with this Court in future may result in adverse consequences.
The tentative ruling is also to grant the motion and dismiss this case with a 180-day bar to being a debtor in bankruptcy pursuant to 11 U.S.C.
109(g)(2).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Gricelda Valenzuela Represented By Daniel King
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 50
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Josefina Flores Jimenez Represented By
Glenn Ward Calsada
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 44
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Roxyana Marie Vivero Represented By Arsen Pogosov
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 39
Continue to 9/24/20 at 8:30 a.m. to address the following issues.
Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Continued hearing date: The continued hearing date is conditioned on the movant serving all amended or supplemental papers in time for self- calendaring on that date.
Note: Notice of the continued hearing must be via certified mail. See
Rule 7004(h) (Fed. R. Bankr. P.).
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%
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then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Kenneth A Lindahl Represented By Carl Shaff II
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/25/20
Docket 24
Debtor(s):
Dora Jane Bates Represented By Marcus Gomez
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 07/23/20
Docket 42
Tentative Ruling for 8/27/20:
Deny for the reasons set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: The IRS is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Internal revenue service's opposition (dkt. 52, the "IRS Opposition"), no reply is on file
Reasons:
The tentative ruling is to deny the motion as follows:
This matter was continued to this date for Debtor to properly serve the IRS and to file a supplemental cost-benefit analysis or, alternatively, withdraw the motion. As of the preparation of this tentative ruling, Debtor has not complied. Therefore, the tentative ruling is to deny the motion for lack of
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prosecution. The tentative ruling is also that, as set forth in the tentative ruling for 7/23/20 (below), Counsel may not charge for any fees associated with the motion.
In addition, the tentative ruling is to deny the motion for the reasons stated in the IRS Opposition.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/23/20:
Continue to 8/27/20 at 8:30 a.m. to address the following issues. Appearances are not required on 7/23/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Service.
The motion papers were not served:
to the address for notices in the creditor's proof of claim (claim no.
4);
as well as in the manner prescribed by Rule 7004(b)(4)&(5) -
addresses and instructions are included in the Court Manual.
No later than seven days after the date of this hearing, Movant must file and serve notice of the continued hearing and proof of service reflecting
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service of the motion papers in a manner consistent with this tentative ruling.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael John Morales Represented By Claudia C Osuna
Joint Debtor(s):
Maria C Morales Represented By Claudia C Osuna
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Dismiss this case for the reasons stated in the order setting this hearing (dkt.12, served dkt.17), and the responses thereto (Ure Decl. dkt.25; Goldbach Decl. dkt.28, superseding dkt.18 which was withdrawn per dkt.29). Notwithstanding any dismissal, this Court will retain jurisdiction to the full extent provided by LBR 1017-2(f), including but not limited to jurisdiction regarding the motion of the United States Trustee for disgorgement (dkt.26). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ruth Francois Jefferson Represented By
8:30 AM
Trustee(s):
Marc A Goldbach
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtors should be prepared to address the issues raised in the Trustee's Comments Or Objection (dkt. 37) and Debtor's belated declaration in response (dkt.41), which appears to have incorrect exhibits attached.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sara Galvan Represented By
Rebecca Tomilowitz
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 300
Grant, extending Debtor's exclusivity period to file a plan to 10/28/20 and to gain acceptance of a plan to 12/28/20, based on Debtor's motion and the non-opposition (dkt. 315) of the Creditors' Committee. Appearances required by counsel for Debtor, who is directed to address the issues raised in this Court's Order Provisionally Granting Application And Setting Hearing On Shortened Notice (dkt. 302).
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
8:30 AM
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the nature of their disputes over the form of the orders at dkt. 78, 80, and 81.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 26
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosie Kris Ramos Represented By
Anthony Obehi Egbase
W. Sloan Youkstetter
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
GOLDMAN SACHS MORTGAGE CO
vs DEBTOR
Docket 98
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michele Viault Represented By Matthew D. Resnik
Movant(s):
Goldman Sachs Mortgage Company Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 53
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose A. Vallejos Represented By Donald E Iwuchuku
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 99
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Catherine Mueller Represented By Alisa Admiral
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 34
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Although no party in interest has raised the issue whether the automatic stay applies, this Court addresses that issue because it is inherent in determining whether to grant relief from whatever stay allegedly exists.
The tentative ruling is to grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (# 2:19-bk-19803- NB) was dismissed (on 9/9/19) within one year before this case was filed (on 10/1/19), (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding
10:00 AM
of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, any request for relief as to past acts (annulment) or future cases (in rem relief) is still at issue even if there is currently no stay.
See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so
10:00 AM
the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Martha Sandra Gutierrez Represented By
James D. Hornbuckle
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 87
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 89).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Hossein Daneshvar Represented By Axel H Richter
Movant(s):
U.S. Bank National Association, as Represented By
Robert P Zahradka
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 25
- NONE LISTED -
Debtor(s):
Jose Francisco Santos Represented By
Sanaz Sarah Bereliani
Movant(s):
Deutsche Bank National Trust Represented By
Dane W Exnowski
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NATIONSTAR MORTGAGE LLC
vs DEBTOR
Docket 29
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Attorney fees
Movant notes that it has incurred attorney fees (dkt. 29, p.4), which is an additional indebtedness and additional cause for relief from the automatic stay. To the extent, if any, that Movant seeks an order of this Court allowing such attorney fees, the tentative ruling is that this Court will not express any view regarding the proper dollar amount of attorney fees because (a) in any nonjudicial foreclosure action, attorney fee issues typically are not decided by a court (and in a judicial foreclosure it is the State Court, not this Bankruptcy Court, that would determine attorney fee issues), (b) a motion for relief from the automatic stay is not the proper vehicle to adjudicate attorney fees in this Bankruptcy Court, and (c) this hearing does not involve any claim objection or other proceeding that might properly present that issue for this Court's determination.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Barbara L Cuevas Represented By Kevin Tang
Movant(s):
Nationstar Mortgage LLC, D/B/A Represented By
Cassandra J Richey
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 85
- NONE LISTED -
Debtor(s):
Alexander Karimi Represented By Julie J Villalobos
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 28
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Rene E Quintanilla Represented By Daniela P Romero
Joint Debtor(s):
Lidia D Sanchez Represented By Daniela P Romero
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SANTANDER CONSUMER USA INC.
vs DEBTOR
Docket 23
Debtor(s):
Joseph Miller Represented By Sundee M Teeple
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 21
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
10:00 AM
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Miguel Loera Represented By
Matthew D. Resnik
Movant(s):
Santander Consumer USA Inc. Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JPMORGAN CHASE BANK, NA
vs DEBTOR
Docket 25
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Martinez Represented By James G. Beirne
Movant(s):
JPMorgan Chase Bank, N.A. Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 23
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Javier Zepeda Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Patricia Zepeda Represented By Jaime A Cuevas Jr.
Movant(s):
Toyota Motor Credit Corporation, as Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AMERICAN HONDA FINANCE CORP
vs DEBTOR
Docket 13
Grant. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
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Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rosa Elvira Garcia Pineda Represented By Christopher J Langley
Movant(s):
AMERICAN HONDA FINANCE Represented By
Vincent V Frounjian
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ONE SOURCE FEDERAL CREDIT UNION
vs DEBTOR
Docket 31
- NONE LISTED -
Debtor(s):
Joseph David Trujillo Represented By Kevin T Simon
Joint Debtor(s):
Jennifer Marsal Trujillo Represented By Kevin T Simon
Movant(s):
One Source Federal Credit Union Represented By
Ryan D Zick
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
Docket 5
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtor should be prepared to address the following issues:
Background
Debtor's prior bankruptcy case (2:20-bk-10045-NB, the "Prior Case") was dismissed on 7/31/20 with a temporary 180-day bar to Debtor being a debtor in bankruptcy. On 8/30/20, this Court issued its Order Vacating Temporary Bar To Being A Debtor In Bankruptcy (the "Order Vacating Bar," Prior Case dkt.35) based in part on Debtor's declaration (Prior Case, dkt.31), and the records in Debtor's three bankruptcy filings that predate the Prior Case. See Prior Case, dkt.35, p.2:5-9. The Order Vacating Bar also stated that "[t]his Court notes, however, that Debtor's history of missed promises and making minimal payments are concerns that may be relevant in any future bankruptcy case." Id. at p.2:9-11.
On 8/10/20, Debtor commenced the instant bankruptcy case (see dkt. 1), and on 8/11/20 Debtor filed a motion to impose or continue the automatic stay (the "Impose Stay Motion," dkt.5).
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Current issues
Debtor's ability to work
The Impose Stay Motion argues among other things that the instant
bankruptcy case has been filed in good faith, and that the presumption of bad faith is overcome, because "at this time Debtor has decided that he is well enough to return to work." Dkt.5, p.4. Debtor's declaration (dated 8/11/20) says: "I am unemployed as I am receiving continuous medical treatment as the result of two vehicle accidents, I was involved in. I have decided that I am now well enough to start working again." Id. at PDF p.8.
Debtor's declaration in the Prior Case (dated 7/29/20) explaining why the Prior Case should not be dismissed with a bar to Debtor being a debtor in bankruptcy, says: "I have been offered a job but unfortunately, I am still receiving continuous treatment and now am not able to take the job offer." Prior Case, dkt.31, p.2, para.13.
Debtor is directed to address how he was too injured to work as of 7/29/20, but as of 8/11/20 is well enough to work.
Debtor's bankruptcy schedules
Debtor's bankruptcy Schedules I&J purport to show that Debtor and his spouse have enough income to make the monthly payments under Debtor's proposed chapter 13 plan. But Debtor's bankruptcy Schedule I ignores the instruction to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Dkt.12, at PDF p.19, line 8a.
Why should creditors, and this Court, accept the unsupported assertion that Debtor will net $4,500 per month? Is that realistic, given Debtor's failures to make payments in prior bankruptcy cases, and the added challenges presented by the current COVID-19 situation?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Jose Manuel Carrillo Represented By Jaime A Cuevas Jr.
Movant(s):
Jose Manuel Carrillo Represented By Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr. Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 8
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Rimola Represented By Sam Benevento
Movant(s):
Karen Rimola Represented By Sam Benevento Sam Benevento
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 10
Grant, subject to the following conditions. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic
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stay, and to impose it as to all persons rather than just as to
selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Leeann Johnson Grayson Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 31
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/16/20 hearing, this Court stated that it would take up the issue of an adequate protection order at this continued hearing. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Tentative Ruling for 6/16/20:
Continue this hearing to 8/24/20 at 10:00 a.m., in view of the three month forbearance agreement (see dkt. 35). Appearances are not required on 6/16/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bryan C Woods Pro Se
Joint Debtor(s):
Donna P Woods Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REVERSE MORTGAGE FUNDING, LLC
vs DEBTOR
Docket 34
Tentative Ruling for 9/1/20 (same as for 7/28/20 except for CourtCall date in brackets):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [9/30/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Joyce Elaine Durden Represented By Thomas B Ure
Movant(s):
Reverse Mortgage Funding LLC Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
vs DEBTOR
Docket 37
Tentative Ruling for 9/1/20:
Grant as set forth in the Tentative Ruling for 7/28/20, reproduced below, because the docket does not reflect any appraisal establishing adequat protection, or other appropriate use of this bankruptcy case with respect to Movant's debt.
Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B). Movant is also directed to attach a copy of the 7/28/20 tentative ruling.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
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If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Alfred Leon Borders Represented By Thomas B Ure
Movant(s):
United States Department of Represented By Elan S Levey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NA
vs DEBTOR
Docket 37
Tentative Ruling for 9/1/20:
Grant as set forth below because as of the drafting of this tentative ruling, Debtor has not filed a motion to sell the property as proposed in her opposition (dkt. 40) and at the 8/4/20 hearing. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
10:00 AM
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's response (dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aquita Winslow Represented By Elena Steers
Movant(s):
HSBC BANK USA, N.A Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 13
Grant subject to the following conditions, and overrule the opposition of the STRATA Trust Company (dkt. 17), for the reasons stated in the reply (dkt.23), except that this Court expresses no views at this time regarding the pending motion for relief from the automatic stay. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument
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is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Shaneka M Morris Represented By
David Samuel Shevitz
Movant(s):
Shaneka M Morris Represented By
David Samuel Shevitz David Samuel Shevitz David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 69
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling. Debtor's counsel is directed to appear to address the issues set forth in this Court's "Order (1) Continuing Hearing on Motion for Relief From the Automatic Stay Under 11 U.S.C. 362 (Real Property) and (2) Directing Debtors' Counsel, Michael V. Jehdian, Esq., to Appear." Dkt. 71.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 8/18/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
10:00 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ricardo Corona Represented By Michael V Jehdian
Joint Debtor(s):
Maricela Corona Represented By Michael V Jehdian
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 28
Debtor(s):
Wende J. Brown Represented By
D Justin Harelik
Movant(s):
Wilmington Savings Fund Society, Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOWD POINT MASTER FUNDING TRUST 2019-PM7
VS DEBTOR
Docket 54
Debtor(s):
Rose Marie Flores Represented By Joshua R Driskell
Movant(s):
Towd Point Master Funding Trust Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Application for fees and expenses [Jason M. Rund, Ch. 7 Trustee]
Docket 25
Approve the Trustee's final report and allow the Trustee $353.50 in fees and
$15.10 in expenses, for total award of $368.60. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lorena Balderas Represented By
11:00 AM
Trustee(s):
Harriet L. Goldfarb
Jason M Rund (TR) Pro Se
11:00 AM
Docket 22
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (i) what factual issues are disputed and (ii) whether this Court should set a schedule for further briefing and evidence. See Order Setting Hearing On Motion Re Satisfaction Of Judgment, dkt. 27.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Michael Nadlman Represented By David S Hagen
11:00 AM
Trustee(s):
Heide Kurtz (TR) Pro Se
11:00 AM
Adv#: 2:20-01147 Gonzalez v. MacMillan et al
Civ.Code section 3439.04(A)(1) 2. Constructive fraudulent transfer [Bankruptcy Code section 548(1)(b); Cal. Civ. Code sections 3439.04(B)(2) and 3439.05]
3. To recover shareholder loans 4. For money had and received 5. To avoid preferential payments (11 U.S.C. section 547)
Docket 1
- NONE LISTED -
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
David MacMillan Pro Se
Cynthia Barrett Martin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
11:00 AM
11:00 AM
Adv#: 2:19-01192 Mesnick v. Witke et al
Docket 1
Debtor(s):
Bret Russell Witke Represented By
Michael H Raichelson
Defendant(s):
Bret Russell Witke Represented By
Michael H Raichelson
Bret Russell Witke Design Inc. Represented By
Michael H Raichelson
Plaintiff(s):
Michael Mesnick Represented By Craig G Margulies
Noreen A Madoyan
Trustee(s):
Wesley H Avery (TR) Pro Se
11:00 AM
fr. 5/5/20, 06/30/20, 7/28/20
Docket 170
Overrule the claim objection (dkt.170, 184) without prejudice because Debtor has not provided any admissible evidence to overcome the prima facie validity of the Franchise Tax Board's proof of claim. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: The Franchise Tax Board is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
fr. 5/5/20, 6/30/20, 7/28/20
Docket 171
Overrule the claim objection without prejudice for the reasons set forth in the Internal Revenue Service opposition (dkt. 252). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: The Internal Revenue Service is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
11:00 AM
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Movant(s):
Zeta Graff Represented By
Michael F Chekian Michael F Chekian Michael F Chekian
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19, 2/4/20, 4/7/20, 7/14/20
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
Docket 43
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
Adv#: 2:19-01211 Avery v. Wellington et al
Turnover of Bankruptcy Estate Property Under 11 U.S.C. Section 542(a); and 3. Authorization to Sell Estate Property Under 11 U.S.C. Section 363(h) and FRBP 7001(3) Free of Co-Owner Interest; 4. Bar Debtor and Amos Q. Wellington from Recovering Avoided Transfer Under Bankruptcy Code, Under 11 U.S.C. Section 522(g)(1)(A) and (B)
fr. 9/24/19, 11/12/19, 3/10/20, 7/14/20
Docket 1
Debtor(s):
Letitia Louise Wellington Pro Se
Defendant(s):
Letitia Louise Wellington Pro Se
Amos Q. Wellington Pro Se
Jonathan Wellington Pro Se
Michael Wellington Pro Se
Plaintiff(s):
Wesley H Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
1:00 PM
Docket 502
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20
Docket 323
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 163
Please see the tentative ruling for the status conference (Calendar No. 5, 9/1/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Docket 165
Please see the tentative ruling for the status conference (Calendar No. 5, 9/1/20 at 1:00 p.m.).
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Docket 1
Tentative Ruling for 9/1/20:
Appearances are not required on 9/1/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Combined status conferences
Three cases are jointly administered: In re Anthony Chan (Case No. 2:20-bk-11409-NB) ("Chan"); In re A Touch of Brass, Inc. (Case No. 2:20- bk-11555-NB) ("Brass"); and A.C. Yu Chan Holding, Inc. (Case No. 2:20-
bk-11476-NB) ("Holding"). This status conference addresses all three cases.
Debtors' motion for approval of settlement agreement with Le Elegant Bath, Inc. ("Elegant") (dkt. 163, 172, the "Settlement Motion"), no opposition is on file
The tentative ruling is to grant the Settlement Motion.
Debtors' motion to dismiss jointly administered bankruptcy cases under 11 U.S.C. 1112(b) (dkt. 165, 172, 180, the "Dismissal Motion"), no opposition is on file
The tentative ruling is to grant the Dismissal Motion and dismiss these
1:00 PM
jointly administered cases, with the limited reservation of jurisdiction requested in that motion.
Proposed orders: Debtors are directed to lodge separate proposed orders via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 2/7/20.
Bar date: 5/5/20 (dkt. 26; timely served, dkt. 27)
Procedures order: dkt.3 (timely served, dkt. 5)
Plan/Disclosure Statement*: N/A
Continued status conference: N/A
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
Docket 174
Please see the tentative ruling for the status conference (calendar no. 8.1, 9/1/20 at 1:00 p.m.)
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 62
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (calendar no. 8.1, 9/1/20 at 1:00 p.m.)
Tentative Ruling for 7/28/20:
Please see the tentative ruling for the status conference (calendar no. 13, 7/28/20 at 2:00 p.m.)
Tentative Ruling for 7/14/20:
Please see the tentative ruling for the status conference (calendar no. 3, 7/14/20 at 1:00 p.m.)
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
fr. 8/18/20
Docket 152
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (calendar no. 8.1, 9/1/20 at 1:00 p.m.)
Tentative Ruling for 8/18/20:
Continue to be concurrent with the continued Status Conference (see calendar no. 5, 8/18/20 at 1:00 p.m.), to address the following issues.
Appearances are not required on 8/18/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0%
1:00 PM
then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20, 7/28/20, 8/18/20
Docket 1
Tentative Ruling for 9/1/20:
Appearances required on Debtor’s motion to sell 6520 and 6522 Brynhurst Avenue (dkt. 174) only.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor’s motion to sell 6520 and 6522 Brynhurst Avenue (dkt. 174, 175, 177); IRS opposition (dkt. 189); Debtor reply (dkt.191)
Grant, subject to the conditions set forth below, and further subject to any overbids.
Service
Although there is no proof of service of this Court's order granting Debtor's application for an order shortening time (the "OST," dkt. 178), as required therein, there is a proof of service of notice of sale (dkt.175) on all creditors with the correct hearing date and time, so the tentative ruling is to excuse Debtor's lack of full compliance with the OST.
Dual agency
The order granting Debtor's application (dkt.88) to employ real estate agent Elsabeth Araya of Real Estate Executives specifically provided, "no dual agency." Order (dkt.126), p.2 (emphasis in original). But it appears that
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Ms. Araya's office has served as agent for both the buyer and the seller. See Sale Motion (dkt.174, Ex.1, at PDF p.21). The tentative ruling is that an independent real estate agent must be brought in to represent the buyer.
Grounds for sale free and clear
On the one hand, the Internal Revenue Service ("IRS") is correct (Opp., dkt.189, p.3, n.5) that the motion does not specify which paragraph of section 11 U.S.C. 363(f) is alleged to apply, and that implicitly it is paragraph "(4)" regarding an alleged "bona fide dispute." The tentative ruling is that the IRS is also correct that, on the present record, it would not be adequately protected unless Debtor segregates all net proceeds (after payment of other liens and costs of sale including any capital gains tax payment) until further order of this Court.
On the other hand, the tentative ruling is that Debtor has raised a sufficient dispute regarding the IRS claim to constittue a "bona fide dispute" and therefore (subject to the adequate protection referenced above) the sale can proceed. In support of Debtor's allegation that there is a bona fide dispute, his declaration (dkt.174) states:
A portion of the tax lien is subject to claim objection based on my allegation that I was the subject of fraud. (Docket Number 155). The hearing has been continued to November 3, 2020 pending the IRS review of its own documents. Escrow will pay $115,652.03 which constitutes the undisputed portions of the 2018 tax lien. [Dkt.174 at PDF p.9:23-26 (emphasis in original).]
The referenced claim objection (dkt.155) includes Debtor's declaration which sets forth alleged identity theft/fraud that, on an objective basis, appears to establish a bona fide dispute. See dkt.155, pp.5-6. See also IRS Obj. (dkt.189, p.3) (citing authorities re meaning of "bona fide dispute").
As for adequate protection, Debtor's reply (dkt.191) states:
The Debtor does not oppose the need to segregate sales proceeds except for the projected $50,000 in capital gains taxes pending the resolution of the [IRS] Claim and this need to segregate should not act as a barrier to completing the sale.
$278,427,33 has been budgeted for the Service [i.e., the IRS], with
$135,000.00 to be paid immediately and with approximately
$143,427.33 to be segregated pending the conclusion of litigation of the Claim. [Dkt.191, p.1:23-27.]
The tentative ruling is that this proposed adequate protection is
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sufficient. In addition, the tentative ruling is that Debtor has established sufficient benefit to the bankruptcy estate and justification for the proposed sale under 11 U.S.C. 363(b), for the reasons set forth in the reply. See dkt.191.
"Good faith" finding
Debtor seeks a "good faith" finding under 11 U.S.C. 363(m). The tentative ruling is that any winning bidder must file declaration(s), preferably from both Debtor and the winning bidder, substantially in the form set forth in the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Dispute under the stipulation for use of cash collateral and adequate protection (the "Stipulation," dkt. 62)
The tentative ruling is that, based on representations at prior hearings, this matter has been fully resolved and should go off calendar.
Debtor’s motion to disallow claim no. 9 of Two Jinn Inc. (dkt. 152), Supplemental declaration of Stella Havkin (dkt. 188)
Grant.
This Court expressly finds that Counsel has provided a cost/benefit analysis (dkt. 188) that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections, so any limitation on fees in the prior tentative ruling on this matter is hereby vacated.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a
1:00 PM
later time).
Continued status conference: 10/6/20 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Located at 49E 68th Way, Long Beach, CA 90805 Under Debtors Proposed Plan Chapter 11 Plan Reorganization
Docket 169
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 178
Please see the tentative ruling for the status conference (calendar no. 12, 9/1/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 124
Please see the tentative ruling for the status conference (calendar no. 20, 6/30/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20, 5/5/20, 6/30/20, 7/28/20
Docket 1
Tentative Ruling for 9/1/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 15
Tentative Ruling for 9/1/20:
Continue as set forth below. Appearances are not required on 9/1/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion
In the tentative ruling for the 7/28/20 calendar, this Court apprised Debtor that pursuant to the Posted of Judge Bason, Section VII(G) (available at www.cacb.uscourts.gov), a budget motion is required. As of the drafting of this tentative ruling, no budget motion has been filed. The tentative ruling is to set a deadline of 9/8/20 for Debtor to file a budget motion, and self- calendar it for the next available hearing on regular notice.
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27).
Bar date: 9/9/20 (dkt. 40; timely served, dkt. 43).
Procedures order: dkt.18 (timely served, dkt.20)
Plan/Disclosure Statement*: file by 9/29/20 using the forms required
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by Judge Bason, or other forms if expressly authorized (DO
NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/15/20 at 2:00 p.m. (no written status report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
1:00 PM
Docket 56
Tentative Ruling for 9/1/20:
Continue as set forth below. Appearances are not required on 9/1/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
This Court has reviewed the latest filed documents in this case, including the Status Report (dkt. 101), and is not aware of any issues that would warrant a status conference at this time.
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 11/2/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/6/20 at 1:00 p.m, brief status report due 9/29/20.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Migan Murray Represented By Andrew Moher
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Docket 6
Tentative Ruling for 9/1/20:
Continue as set forth below. Appearances are not required on 9/1/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Order to show cause ("OSC") re dismissal with a bar, or conversion to chapter 7, or other remedies?
The tentative ruling is to issue an OSC why this case should not be dismissed under 11 U.S.C. 1112(b), or converted, or why other remedies should not be imposed, and in the event of any dismissal why a bar should not be imposed against future bankruptcy cases due to willful failure to appear in proper prosecution of this matter under 11 U.S.C. 109(g)(1), in view of:
this Court's dismissal of Debtor's adversary proceeding against U.S. Bank (Adv. No. 2:20-ap-01068-NB),
Debtor's inability to fund any plan of reorganization absent a successful prosecution of the claims in that adversary proceeding (see, e.g., dkt. 47, p.2:15-23, MOR dkt.128, and dkt.130, para.3), and
Debtor's apparent forum shopping, and apparent use of litigation for improper purposes such as delay, by attempting to bring claims in this Bankruptcy Court that arise from the same nexus of operative facts as
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one or more pending actions in the State Courts, after adverse rulings in the State Courts, and the evidence in the record that this bankruptcy case is in all material respects only a two-party dispute with the other party to that State Court litigation.
The tentative ruling is to set the OSC for hearing contemporaneous with the continued status conference (see below), with any response for or against the OSC due 9/15/20 and any reply due 9/22/20.
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/29/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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Current issues
Budget motion (dkt. 83), orders setting hearing on budget motion (dkt. 103) and continuing hearing (dkt. 105), Amended budget motion (dkt. 118) and supplemental declaration (dkt. 120)
There is no tentative ruling. The parties are directed to address whether the amended budget should be approved.
Monthly Operating Reports ("MORs")
On 6/22/20 the Clerk's Office issued notices directing Debtor to re-file April and May MORs, but as of the preparation of this tentative ruling, Debtor has not complied. Why not?
Additionally, based on this Court's comparison of Debtor's signature in docket 83, page 2, with the MORS, it is unclear whether Debtor is personally signing her MORs or if someone else is signing on her behalf. Debtor should be prepared to address this issue.
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/1/20 at 1:00 p.m. Brief status report due 8/18/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
1:00 PM
Docket 1
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Monthly Operating Reports ("MORs")
Debtor's latest MOR shows a monthly profit, but (i) Debtor reports not having timely filed tax returns and/or paid taxes (MOR for 7/20 (dkt.69), p.1, item 6), so after taxes Debtor might be losing money, especially given Debtor's past history of not paying taxes (see, e.g., dkt.70, Ex.A); (ii) Debtor reports "cash deposits" of $4,000 (id., p.4, Ex.C, item 4) and "cash withdrawals" of $3,800 (id., p.4, Ex.D, item 12) but there is no description of the nature of these deposits and withdrawals, so it is unclear if cash contributions or other transactions are artificially inflating Debtor's profit (or otherwise distorting Debtor's finances); and (iii) Debtor's latest MOR (dkt.69) appears to be an amendment to a prior MOR (dkt.68), but the box for "amended filing" is not checked. What are Debtor's true finances?
The tentative ruling is to set a deadline of 9/15/20 for Debtor to file (further) amended MORs, supported by a declaration of Debtor's principal, disclosing in detail the nature of all postpetition cash deposits and
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withdrawals and estimates of all unpaid postpetition taxes. In addition, the tentative ruling is to caution Debtor that excessive cash transactions, and/or failure to describe adequately the nature of those transactions, and/or failure to pay postpetition taxes and/or file tax returns, may be cause to convert or dismiss this case or impose other remedies.
Plan and disclosure statement
First, Debtor's estimate of monthly income and expenses (dkt.71, Ex.C, at PDF p.71) does not include any breakdown or supporting analysis. What is the basis for those projections, and are they sufficiently plausible to warrant voting on the Plan?
Second, Debtor's disclosure of nonpriority unsecured creditors (dkt.71, Ex.F, at PDF pp.11-12) lists a total of $111,827.00 and cross-references Debtor's amended Bankruptcy Schedule E/F at dkt.39. But the latter includes priority claims. Therefore the estimate of nonpriority unsecured claims appears to be overstated by over $45,000. Moreoever, the bankruptcy schedules do not reflect any changes to total nonpriority unsecured claims based on filed proofs of claim.
The tentative ruling is to set a deadline of 9/15/20 for Debtor (i) to file a declaration explaining in detail the basis of the projected income and expenses, (ii) to file (but NOT serve) an amended Plan and amended Disclosure Statement with any revised projected income and expenses and with a revised Ex.F that takes into account filed proofs of claim and not double-counting priority claims (all of which presumably will result in a revised projected dividend to nonpriority unsecured creditors), and (iii) to lodge a proposed order (substantially in the form posted on Judge Bason's portion of the Court's website, www.cacb.uscourts.gov) conditionally approving the disclosure statement and setting a combined hearing, concurrent with the continued status conference set forth below, on final approval of the Disclosure Statement and confirmation of the Plan (that order will only be issued if Debtor's corrections to the MORs, supporting declaration, and the amended Plan and amended Disclosure Statement all appear to warrant balloting and holding a hearing on the amended Disclosure Statement and the amended Plan).
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition
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date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan and Disclosure Statement*: See above.
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
1:00 PM
Docket 6
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Monthly Operating Reports ("MORs")
Debtor's June 2020 MOR (dkt.58) discloses non-payment of postpetition monthly amounts owed to secured creditors. What is the current status of Debtor's postpetition defaults?
Debtor's July 2020 MOR (dkt.64) is missing the page that would have made similar disclosures, and appears to be missing a number of other pages. What is missing? The tentative ruling is to set a deadline of 9/15/20 for Debtor to file an amended July 2020 MOR.
Chapter 11 Plan (the "Plan," dkt. 63) and Chapter 11 Disclosure Statement (the "Disclosure Statement," dkt. 61)
Debtor's projection of income (dkt.61, Ex.C, at PDF pp.8-9) cross- references dkt.20 (Debtor's Bankruptcy Schedules) for a breakdown of Debtor's personal income and expenses and rental income and expenses. There are two problems with that approach.
First, Debtor's Bankruptcy Schedule I does not include any breakdown
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of income and expenses, despite the instruction on line 8a to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Second, Debtor appears to be double-counting. Specifically, Debtor's Plan includes payment of the 2d mortgage on Debtor's home (dkt.63, Ex.A, at PDF p.9, Class 1B), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.27, last line); and likewise Debtor's Plan includes payment of the 1st DOT on the rental property (dkt.63, Ex.A, at PDF p.9, Class 2A), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.28, line 17c).
The tentative ruling is to set a deadline of 9/15/20 for Debtor (i) to file (but NOT serve) an amended Bankruptcy Schedule I with the required "statement for each property or business," an amended Plan, and an amended Disclosure Statement correcting the above issues, and (ii) to lodge a proposed order, in the form provided on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same date and time as the continued status conference (see Section 2(d) below).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: See above
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 1
Tentative Ruling for 9/1/20:
Continue to 10/6/20 at 1:00 p.m., with the expectation that this Court will take the continued hearing off calendar if the Motion For Issuance Of Final Decree Closing Chapter 11 Case (dkt. 135) is granted prior to the continued hearing. Appearances are not required on 9/1/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Appearances required by counsel for the Debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact
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CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's status report (dkt.134) appears to show sufficient compliance with her confirmed Plan. When does Debtor expect to file an application for a final decree?
Deadlines/dates
The tentative ruling is to set a continued post-confirmation status conference for 9/1/20 at 1:00 p.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Patricia Ann Theus Represented By Onyinye N Anyama
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 7/14/20, 7/28/20
Docket 11
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By
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James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
Gilbert Martinez Represented By James A Judge
Ofelia Argaez de Chuc Represented By James A Judge
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Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 06/16/20, 7/14/20
Docket 1
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Pro Se
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Argaez De Chuc Represented By
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James A Judge
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
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Docket 6
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 12/10/19, 1/7/20, 02/18/20, 4/21/20, 6/2/20, 07/07/20, 8/18/20
Docket 5
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (calendar no. 23, 9/1/20 at 1:00 p.m.)
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (calendar no. 8, 8/18/20 at 1:00 p.m.)
Tentative Ruling for 7/7/20:
Please see the tentative ruling for the status conference (calendar no. 2, 7/7/20 at 1:00 p.m.)
Tentative Ruling for 6/2/20:
Please see the tentative ruling for the status conference (calendar no. 26, 6/2/20 at 1:00 p.m.)
Tentative Ruling for 4/21/20:
Please see the tentative ruling for the status conference (calendar no. 18, 4/21/20 at 1:00 p.m.)
Tentative Ruling for 2/18/20:
Please see the tentative ruling for the status conference (calendar no. 14, 2/18/20 at 1:00 p.m.)
Tentative Ruling for 1/7/20:
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Please see the tentative ruling for the status conference (calendar no. 4, 1/7/20 at 2:00 p.m.)
Tentative Ruling for 12/10/19:
Please see the tentative ruling for the status conference (calendar no. 10, 12/10/19 at 1:00 p.m.)
Tentative Ruling for 10/29/19:
Please see the tentative ruling for the status conference (calendar no. 21, 10/29/19 at 2:00 p.m.)
Tentative Ruling for 10/15/19:
Please see the tentative ruling for the status conference (calendar no. 4, 10/15/19 at 2:00 p.m.)
[PRIOR TENTATIVE RULING OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20
Docket 1
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Cash collateral motion (dkt. 5, as supplemented with latest proposed budget, dkt.318)
Grant on a final basis, subject to any persuasive opposition by East West Bank, on the same terms and conditions as previously ordered (dkt. 311).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee -
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this Court will set a deadline and procedures at a later time).
Continued status conference: 9/29/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
VADIM KOGAN
vs DEBTOR
Docket 23
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (calendar no. 25, 9/1/20 at 1:00 p.m.)
Tentative Ruling for 8/18/20:
Grant in part and deny in part as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic
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stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is no evidence of multiple bankruptcy cases, unauthorized transfers of interests in property, or other acts that would amount to a scheme to delay, hinder, or defraud the Movant within the meaning of the authorities cited above.
Movant's assertion that Debtors are involved in the cannabis business - while apparently accurate in general - has not been tied to this
specific property. Even if it were, Movant has not established how any activity at the property that might be illegal under federal law (with no evidence of any enforcement action by federal prosecutors) has any bearing on whether to grant in rem relief.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
Vadim Kogan Represented By Richard J Reynolds Joseph P Buchman
1:00 PM
Docket 1
Tentative Ruling for 9/1/20:
Appearances required by counsel for Debtors.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Vadim Kogan's Motion For Relief From The Automatic Stay (dkt. 23, 29), adequate protection order (the "APO," dkt. 42)
There is no tentative ruling, but, in connection with Mr. Kogan's request for additional relief, including "in rem" relief, the parties are directed to address the following issues. First, Debtors have presented an unauthenticated copy of purported insurance declarations. See dkt.51. But this Court ordered them to file a declaration authenticating his insurance coverage. APO (dkt.42) p.6, para.11.
Second, the parties are directed to address whether Debtors have provided adequate proof of alleged payments to the senior lienholder, and are otherwise in compliance with the APO. Third, the parties are directed to address whether the following issues establish cause for "in rem" relief.
Monthly Operating Reports ("MORs")
Debtors' June and July 2020 MORs (dkt.49, 50) make a mockery of the required disclosures. First, Debtors have completely ignored this Court's
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repeated directions - in the "Procedures" order issued at the inception of this case (dkt.6) and repeated in the adopted tentative ruling for 7/28/20 (dkt.43, Ex.A, pp.4-5) - that "For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor[s] must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses "
(Emphasis added.)
Second, even if Debtors' MORs were limited to their personal income and expenditures (which they are not) the MORs are not credible on their face. For example, they include almost no reported food expenditures.
Third, the MORs include vague entries such as "[c]ash" ($620 on 6/24/20, per dkt.49 at PDF p.6) or "[a]djustment" ($500 on 6/29/20, per id.). Such vague entries are tantamount to hidden transactions.
Fourth, the MORs are mostly blank in places where they should not be, such as disclosures of taxes owed and paid (e.g., dkt.49 at PDF p.15) and insurance coverage for vehicles (e.g., dkt.49 at PDF p.17). The MORs offer no explanation.
SOFA
Amended Bankruptcy Schedule I (dkt.48); and lack of amended
At one place in this Court's Order to Show Cause ("OSC," dkt.43, Ex.A,
p.3, para."(1)(c)") this Court listed one example of Debtors' inadequate financial disclosure: their Bankruptcy Schedule I listed income but no income taxes. That one example was only that: a single example. The same OSC refers to the "same problems" previously noted (id.), which include, as another example, that Debtors' SOFA lists $0 in income from any source for the past several years, which appears on its face not to be credible. See dkt.43, Ex.A, p.4, para."(1)(b)."
Despite owning a complex series of multi-million dollar businesses (see dkt.46, last page), Debtors' amended Bankruptcy Schedule I (dkt.48, at PDF pp.9-10) lists only $7,666/mo. of salary for Mr. Sergio Tellez, much reduced from his prior reported income. There is still no line item specifically disclosing any income taxes on that salary - instead there is a lump sum
$2,300 described as "30% of gross [income] put aside for taxes, medicare, SSA." Id.
In addition, Ms. Roseanna Tellez is listed as having $0 income despite being described as an "Administrative Assistant" at Spliffin Group Inc. for the last 6 months; Debtors purport to have $0 income from any property or
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business (dkt.48 at PDF p.10, line 8a); and they claim $0 income from any interest or dividends (id., line 8b). In addition, Debtors have not filed any amended SOFA.
Order to show cause ("OSC," dkt. 43)
The tentative ruling is that, although Debtors nominally have filed most of the documents required by the OSC (see dkt. 46-50), their financial disclosures are a complete sham, for the reasons set forth above. The tentative ruling is that Debtors have willfully failed to appear in proper prosecution of this case, within the meaning of 11 U.S.C. 109(g)(1), and have misrepresented facts, unfairly manipulated the Bankruptcy Code, filed their bankruptcy petition for improper and inequitable purposes of delaying and harassing creditors; and have engaged in egregious behavior as described above.
The tentative ruling is to dismiss this case with a permanent bar against being debtors in any future bankruptcy case, unless this Court for cause shown were to lift that bar after notice to all parties in interest in this case and a hearing. In addition, the tentative ruling is to include a concurrent bar under 11 U.S.C. 109(g)(1) (for the first 180-days of the permanent bar).
See 11 U.S.C. §§ 105(a), 349(a), 1112(b); In re Glover, 537 Fed.Appx. 741 (9th Cir. 2013) (affirming dismissal with a five-year bar to refiling under 11
U.S.C. 105(a)); In re Leavitt, 171 F.3d 1219 (9th Cir. 1999) (affirming dismissal with prejudice based on finding of bad faith, considering whether debtor misrepresented facts, unfairly manipulated Code, or otherwise filed his petition or plan in inequitable manner; debtor’s history of filings and dismissals; whether the debtor intended to defeat state court litigation; and whether egregious behavior is present).
Alternative grounds for dismissal with bar
The record before this Court is that much of Debtors' business involves cannabis, which is illegal under federal law. Although that fact does not necessarily create a bar that would prevent Debtors from reorganizing their finances at all in bankruptcy, at the very least Debtors would have had to pay special attention to careful disclosures of their finances and operations, and show what steps they are taking toward coming into compliance with nonbankruptcy laws, or divesting themselves of non-compliant businesses, or taking other steps to make appropriate use of the bankruptcy system. See, e.g., 28 U.S.C. 959(b); In re Burton, 610 B.R. 633 (9th Cir. BAP 2020); In re
Olson, 2018 WL 989263 (9th Cir. BAP 2/5/2018). But Debtors have done
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none of these things, and as set forth above they have flouted the required financial disclosures.
In sum, Debtors' involvement in businesses that are illegal under federal law, and their lack of care in dealing with the associated legal and financial issues, are additional reasons to impose the above bars against being debtors in any future bankruptcy case.
Starting date for bar
The tentative ruling is that the bars described above should commence from the time when this tentative ruling is first posted (8/31/20 just prior to 9:15am).
Notice
This Court notes that Debtors' counsel did not comply with this Court's direction to serve the OSC on all parties in interest. See OSC (dkt.43), p.4, para.4. Nevertheless, the tentative ruling is that all parties in interest have received adequate notice pursuant to this Court's Procedures order, which was served on all parties in interest. See dkt.6, 16.
Deadlines/dates. This case was filed on 6/23/20.
Bar date: 10/29/20 (dkt. 30; timely served dkt.47).
Procedures order: dkt.6 (timely served, dkt.16)
Plan/Disclosure Statement*: N/A
Continued status conference: N/A
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see dkt.43, Ex.A, for tentative rulings through 8/18/20)]
1:00 PM
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
1:00 PM
Docket 43
Please see the tentative ruling for the status conference (calendar no. 25, 9/1/20 at 1:00 p.m.)
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
2:00 PM
For Approval Of Fees And Reimbursement Of Expenses
Docket 304
Allow the Subchapter V Trustee $1,121.00 in fees $0.00 in expenses, for total award of $1,121.00. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr
2:00 PM
Trustee(s):
Rika Kido
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 31
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's exit strategy
At the 7/28/20 hearing, Debtor's counsel represented to this Court that he was in communication with creditors regarding a structured dismissal.
Debtor is directed to address the status of those communications, and Debtor's likely strategy for exiting bankruptcy.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD
Continued status conference: 10/27/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status
2:00 PM
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
(2) Confirmation of Chapter 11 Plan
Docket 169
Please see the tentative ruling for the status conference (calendar no. 3, 9/1/20 at 2:00 p.m.)
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
2:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20, 5/19/20,
6/30/20, 7/28/20
Docket 1
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor and the Subchapter V Trustee.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's Second Amended Chapter 11 Plan (the "Plan," dkt. 167), Debtor's Second Amended Disclosure Statement (the "Disclosure Statement," dkt. 168), order setting a combined hearing on the Plan and Disclosure Statement (dkt. 169), proof of service (dkt. 173), and ballot summary (dkt. 175)
The tentative ruling is (i) notwithstanding Debtor's erroneous assertion that "cramdown" is not required (Ballot Summary, dkt.175, p.1, line 3), to accept an oral motion by Debtor to confirm the Plan notwithstanding the lack of acceptance by all impaired classes (11 U.S.C. 1129(a)(8)); (ii) notwithstanding the lack of an actual ballot from the holder of the Class 2A claim, to accept the provision in the parties' stipulation that "Secured Creditor agrees to vote for Debtor's Plan ..." as a self-effectuating vote; and (iii) to approve the Disclosure Statement on a final basis; confirm the Plan under 11
2:00 PM
U.S.C. 1129(b) (excusing compliance with 1129(a)(8)); and set a post- confirmation status conference as set forth below.
Proposed orders: Debtor is directed to lodge two proposed orders via LOU within 7 days after the hearing date - one for the Disclosure Statement and one for the Plan. The latter should include a paragraph setting the post- confirmation status conference. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/30/19. The petition was amended to elect Subchapter V on 4/6/20 (see dkt. 111).
Bar date: 12/13/19 (see Order, dkt. 28, timely served, dkt. 89 & 90)
Plan/Disclosure Statement*: See above.
Post-Confirmation status conference if Plan is confirmed: 11/3/20 at 1:00 p.m., written status report due 10/20/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
7/14/20, 7/28/20, 8/18/20
Docket 43
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 7, 9/1/20 at 2:00 p.m.)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:20-01147 Gonzalez v. MacMillan et al
Civ.Code section 3439.04(A)(1) 2. Constructive fraudulent transfer [Bankruptcy Code section 548(1)(b); Cal. Civ. Code sections 3439.04(B)(2) and 3439.05]
To recover shareholder loans 4. For money had and received 5. To avoid preferential payments (11 U.S.C. section 547)
Docket 1
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 7, 9/1/20 at 2:00 p.m.)
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
David MacMillan Pro Se
Cynthia Barrett Martin Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim
2:00 PM
James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20, 7/14/20, 7/28/20, 8/18/20
Docket 332
Tentative Ruling for 9/1/20 (same as for 8/18/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
The parties are directed to address the status of their settlement efforts.
Dates/deadlines
After addressing the foregoing, the tentative ruling is to continue the status conferences on calendar for today to 9/29/20 at 2:00 p.m., with no status reports required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
8/18/20
Docket 1
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 7, 9/1/20 at 2:00 p.m.)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic
2:00 PM
Trustee(s):
Daniel M Eliades
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 8/18/20
Docket 1
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar no. 7, 9/1/20 at 2:00 p.m.)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
2:00 PM
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20, 8/18/20
Docket 247
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (Calendar no. 11, 9/1/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20
Docket 49
Tentative Ruling for 9/1/20:
Appearances required (Note: this matter will not be called prior to 2:30 p.m. unless all parties in interest are present).
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272)
There is no tentative ruling. The parties should be prepared to address
(i) whether the refinance/payoff anticipated by Debtor via her husband closed and (ii) the current status/future of this case.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: dkt. 246, 247
2:00 PM
Continued status conference: 9/15/20 at 1:00 p.m., to be
concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
2:00 PM
Docket 198
- NONE LISTED -
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
Adv#: 2:18-01158 Duff v. Quinn
Docket 0
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
(iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions
fr. 8/19/20
Docket 173
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
NOTE: For purposes of the deadline to notify opposing counsel/parties of an intent to contest tentative rulings (1/2 the time between the time of posting and the hearing time), the Tentative Rulings for 9/15/20 were first posted shortly before:
1:37 p.m. on 9/14/20
Except that the following tentative rulings have been posted shortly before: 8:50 a.m. on 9/15/20
In re Tann (10:00 a.m., cal.#14), In re Lara & Calva (1:00 p.m., cal. ## 12-14), and In re Kennedy (1:00 p.m., cal. ## 15-19).
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 51).
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edgar Pineda Rios Represented By Theresa Hana
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu Gilbert R Yabes James F Lewin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 29
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Josefina Briseno Olmos Represented By Sydell B Connor
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY
vs DEBTOR
Docket 44
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
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analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief
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from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Kelly W Maxwell Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Kristin A Zilberstein
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
LOAN HOLDING ENTERPRISE, LLC
vs DEBTOR
Docket 7
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal
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analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief
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from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Lena Nicole Ojinaga Pro Se
Movant(s):
Loan Holding Enterprise, LLC Represented By Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
STRATA TRUST COMPANY
vs DEBTOR
Docket 18
Debtor(s):
Shaneka M Morris Represented By
David Samuel Shevitz
Movant(s):
STRATA Trust Company, et al Represented By Edward T Weber
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 55
Debtor(s):
Edmundo Gomez Represented By Barry E Borowitz
Joint Debtor(s):
Arlene Alvarez Gomez Represented By Barry E Borowitz
Movant(s):
Ford Motor Credit Company LLC Represented By
Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BRIDGECREST CREDIT COMPANY, LLC
vs DEBTOR
Docket 26
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
10:00 AM
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sonia Barrientos Represented By David Lozano
Movant(s):
Bridgecrest Credit Company, LLC Represented By
Angie M Marth
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 116
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter has been continued multiple times. Most recently, at the hearing on 6/16/20, this Court set a deadline of 9/14/20 for Debtor to file and serve a motion to approve a proposed refinancing or sale of the subject property so as to pay Movant in full (which motion was to be set for hearing no later than 10/22/20, on the 8:30 a.m. calendar). As of the preparation of this tentative ruling, no such motion appears on the docket. Accordingly, the tentative ruling is to terminate the automatic stay under 11 U.S.C. 362(d)(1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the hearing on 3/26/20 this Court declined to order adequate protection payments or set a deadline for a sale or refinance, in view of the alleged equity in the property and the COVID-19 situation. But (a) this Court cautioned Debtor about the need to move forward with a refinance, sale, or other resolution of the parties' issues, and (b) this Court directed Debtor to file a status report no later than 6/2/20.
As of the preparation of this tentative ruling, no status report has been filed. Debtor is directed to address what sanction should be imposed for disregarding this Court's order to file a status report.
On the merits, the tentative ruling is to set a deadline of 9/15/20 to file and serve a motion for a sale or refinance to pay off movant, and self- calendar that motion for hearing no later than 10/22/20 at 8:30 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/26/20 (same as for 3/10/20 except for telephonic procedures):
10:00 AM
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20.
Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to negotiate regarding the issues addressed in the tentative ruling for 2/18/20 (reproduced below). Has this matter been resolved?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 2/18/20:
This matter was continued to this date (a) to allow time for Debtor to substitute in new counsel and (b) for Debtor to determine whether she can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments. The tentative ruling is to set a deadline of 4/6/20 for Debtor to file and serve a motion seeking authorization for one of those methods of curing her defaults, to be self- calendared for hearing no later than 4/30/20 at 8:30 a.m. Meanwhile, the tentative ruling is to continue this hearing to 4/7/20 at 10:00 a.m.
Appearances are not required on 2/18/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
10:00 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/28/20:
Appearances required. This matter was continued to this date to allow time for the parties to attempt to resolve this dispute. Based on this Court's review of the filed documents and records in this case, including Debtor's response (dkt.119) and Movant's reply (dkt.124) the tentative ruling is that Debtor has not rebutted Movant's evidence that Debtor is seriously in default, but that Debtor as the owner of the property is competent to provide an opinion as to its value, and Debtor has asserted a very substantial equity cushion, so the parties should be prepared to address whether Debtor can and will refinance the debt, or sell the property, or propose some other realistic strategy for addressing her missed payments.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 1/7/20:
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
10:00 AM
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Felisa Dee Richards Represented By William D Bowen
Movant(s):
Ajax Mortgage Loan Trust 2018-G, Represented By
Joshua L Scheer Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 36
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to review their accounting records. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
10:00 AM
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aura Marina Figueroa Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEWREZ, LLC
vs DEBTOR
Docket 26
Debtor(s):
William Moises Martinez Represented By Erika Luna
Joint Debtor(s):
Maritza Del Pilar Martinez Represented By Erika Luna
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Christopher Giacinto Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 37
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/28/20 hearing, this Court was persuaded to continue this matter for a possible forebearance agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) whether they will agree to the terms of a forebearance agreement (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
10:00 AM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Movant(s):
CARRINGTON MORTGAGE Represented By
Diana Torres-Brito Julian T Cotton
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON TRUST, NATIONAL ASSOICATION
vs DEBTOR
Docket 28
Debtor(s):
Fretze Maria Majied Represented By Philomena N Nzegge
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 85
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 88).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Alexander Karimi Represented By Julie J Villalobos
Movant(s):
U.S. BANK NATIONAL Represented By
10:00 AM
Trustee(s):
Diane Weifenbach
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 34
Debtor(s):
Vivian Louise Tann Represented By Andrew Moher
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANK OF THE WEST
vs DEBTOR
Docket 37
- NONE LISTED -
Debtor(s):
Sarah VanDerBeets Represented By Kateryna Bilenka
Movant(s):
BANK OF THE WEST Represented By
Mary Ellmann Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ASSET-BACKED CERTIFICATES, SERIES 2006-22
vs DEBTOR
Docket 44
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date at Movant's request to allow additional time for Movant to review its records and determine whether the arrears have been brought current. There is no tentative ruling, but the parties should be prepared to address the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Therese Kiwi Foisia Represented By Nima S Vokshori
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 33
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 8/4/20 hearing, Movant's counsel informed this Court that the notice regarding forebearance (dkt. 37) was for payments from July onward, rather than to address the arrears from April to July. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
10:00 AM
on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.37). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
10:00 AM
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
Deutsche Bank National Trust Represented By Jennifer C Wong Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01149 The SAS Creditor Trust v. L.A. Paint and Body Works, Inc. a California
of plan injuctions; and 3) Turnover of property of the estate [11 U.S.C. section 542]
Docket 1
Continue to 11/10/20 at 11:00 a.m. pursuant to Plaintiff's status report (adv.dkt.10). Appearances are not required on 9/15/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
L.A. Paint and Body Works, Inc. a Pro Se
Plaintiff(s):
The SAS Creditor Trust Represented By Monserrat Morales
11:00 AM
Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20, 5/5/20
Docket 1
Tentative Ruling for 9/15/20:
Continue, with interim deadlines, as set forth below. Appearances are not required on 9/15/20.
This Court has reviewed the parties' joint status report (dkt. 19) and the other filed documents and records in this adversary proceeding.
Current issues
On 5/14/20, this Court entered a scheduling order memorializing the deadlines set forth in section (3) below (adv.dkt. 17). The tentative ruling is to direct the parties to meet and confer regarding updated deadlines, in view of the uncertainty and challenges presented by COVID-19 noted in their joint status report, and lodge a proposed agreed order (or, if they cannot agree, separate proposed orders) no later than 9/29/20.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (see adv.dkt.15).
Mediation: Is there is any reason why this Bankruptcy Court should
11:00 AM
not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), as this Bankruptcy Court contemplated at the last status conference? The tentative ruling is to set a deadline of 9/29/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 11/5/19. [See above re possible amendment of the following deadlines ordered in adv.dkt.17]
Joinder of parties/amendment of pleadings: 11/20/20 deadline. Discovery cutoff (for completion of discovery): 12/8/20.
Expert(s) - deadline for reports: 12/15/20.
Expert(s) - discovery cutoff (if different from above): 12/29/20. Dispositive motions to be filed no later than: 1/26/21 - NOTE: per the
District Court's order (adv.dkt.15, Ex.1) any such motions are to be heard by the District Court.
Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 11:00 a.m.
Lodge Joint Proposed Pre-Trial Order: TBD NOTE: see immediately following paragraph below.
Pretrial conference: TBD NOTE: The District Court's order (referenced above) directs that this Bankruptcy Court address all pretrial proceedings (except dispositive motions) through the approval and entry of a pretrial order. This Bankruptcy Court interprets that direction to require supplemental proceedings before the District Court to address some issues that normally might be included in a pretrial order, such as the trial date, the format of exhibits preferred by District Court Judge Bernal, etc. The parties are directed to plan accordingly (e.g., addressing with the District Court what trial date should be included in any pretrial order).
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A
Trial commencement: N/A
11:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush Vanessa M Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
fr. 08/07/18, 11/27/18, 2/5/19, 3/28/19, 06/06/19; 08/08/19, 11/19/19, 02/18/20, 5/20/20, 6/2/20, 7/28/20
Docket 1
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Tentative Ruling for 9/15/20:
Continue, with interim deadlines, as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Untimely status report
At the last status conference, this Court directed the parties to submit a joint status report by 9/1/20. Accordingly, the parties' joint status report filed on 9/3/20 is untimely. The parties are cautioned that failure to comply with this Court's filing deadlines in future may result in adverse consequences.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
11:00 AM
Matters of venue, jurisdiction, and authority have been determined
and/or waived or forfeited (adv.dkt. 16).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 10/30/20 Discovery cutoff (for completion of discovery): 11/27/20 Expert(s) - deadline for reports: n/a
Expert(s) - discovery cutoff (if different from above): n/a Dispositive motions to be heard no later than: 12/22/20 Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
11:00 AM
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Represented By David Brian Lally
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
11:00 AM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
11 U.S.C. section 542; 3) Avoidance of transfer under 11 U.S.C. section 544; 4) Avoidance of faudulent transfer under 11 U.S.C.
section 548; 5) Recovery and preservation of avoided transfers pursuant to 11 U.S.C. sections 550(a), 551; 6) Unfair Practices under California Business & Professions code section 17200; and 7) Slander of title
fr. 4/21/20
Docket 1
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
11:00 AM
Trustee(s):
Caroline Renee Djang (TR) Pro Se
11:00 AM
Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
Docket 61
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Movant(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker
11:00 AM
Joseph Chora
Twisted Oliver Holdings, LLC Pro Se
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker Joseph Chora
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
11:00 AM
Adv#: 2:19-01157 Twisted Oliver Holdings, LLC v. Dickens
fr. 7/30/19, 9/24/19, 12/10/19, 5/19/20
Docket 1
Debtor(s):
Charles S Dickens Represented By
Eric Bensamochan
Defendant(s):
Charles S Dickens Represented By
Eric Bensamochan
Plaintiff(s):
Twisted Oliver Holdings, LLC Represented By Holly Walker Joseph Chora
Trustee(s):
Wesley H Avery (TR) Represented By
Kathy Bazoian Phelps Jeffrey L Sumpter
1:00 PM
Docket 280
Please see the tentative ruling for the status conference (Calendar No. 2, 9/15/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20, 9/1/20
Docket 49
Tentative Ruling for 9/15/20:
Appearances required.
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272)
There is no tentative ruling. The parties should be prepared to address whether it is premature to set any hearing on confirmation given (i) Debtor's assertion that in future she "may amend the Plan" to address various objections (dkt.285, p.3, n.1), (ii) the fact that a critical component of the latest Plan is obtaining financing from Debtor's husband, but her husband has been unable to date to pay off or refinance debts on the Laurel property, so on the present record it appears that the Plan is premised on unrealistic funding, and
(iii) it is not clear that Debtor has sufficiently addressed the issues previously raised by the parties and this Court, including but not limited to the following (including whatever updated dollar amounts might be required):
COPY OF TENTATIVE RULING FROM 7/28/20:
... The tentative ruling is that, for at least the following reasons, the Plan cannot be confirmed.
First, as both Celtic Bank and the Subchapter V Trustee point out Debtor's Plan does not set aside an estimated dollar amount for administrative expenses.
Second, as Celtic Bank points out (dkt.254, p.3:6-11), it has a substantial claim for pre- and postpetition default interest on its fully matured loan, as well as attorney fees. In general, claims for both prepetition and "pendency" default interest on oversecured claims
1:00 PM
are allowed in bankruptcy cases, as are attorney fees, up to the value of the collateral. So any debtor either has to take steps quickly to stop the running of that interest - such as a section 363
sale, a refinance, or a confirmable plan - or else that debtor has to pay that interest in full (up to the value of the collateral). See generally In re Aarons (Case 2:19-bk-18316-NB), dkt. 268, pp.9:13-10:8.
The tentative ruling is that the Plan must, but does not, provide for payment of administrative expenses and Celtic's default interest and attorney fees. Nor does the Plan or any other filed document known to this Court provide a basis for this Court to presume that the very large proposed contributions would be increased by enough to cover the shortfall. Therefore, the tentative ruling is that it would be a waste of time and resources to set a hearing on confirmation of Debtor's proposed Plan at this time, so the Plan Hearing Request must be denied.
SubChapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), replies due at hearing
Debtor has had just under 10 months in this case, and almost a year since the commencement of her prior bankruptcy case (2:19-bk-21504-NB), to arrange some alternative to selling the Laurel Property. Debtor requests that turnover will be unnecessary in view of her hoped-for financing from her husband and/or her hoped-for confirmation of some variation on her latest proposed Plan.
The tentative ruling is that these alternatives are speculative, particularly in view of Debtor's history of missed projections and unkept obligations. See dkt.208, 209, 232. Accordingly, the tentative ruling is that these arguments do not warrant delaying Debtor's obligation to turn over the Laurel Property.
Debtor also argues that her parents have special needs that have required unspecified "special adaptation" of the Laurel Property (dkt.285, at PDF p.11:8); that Debtor's own home and other properties allegedly cannot accommodate those special needs, again for unspecified reasons; and that replacement residential arrangements for Debtor's parents would be "difficult, at best, during this time of COVID-19." Dkt.285, at PDF p.11:15-16. The tentative ruling is that these vague allegations are insufficient, particularly
1:00 PM
because they are unsupported by any medical reports, any photographs of ramps or other special accommodations, any estimate from contractors about the time and expense that would be required to accommodate Debtor's parents in her home or other properties, or any other specific information and evidence that would support Debtor's allegations.
This Bankruptcy Court does not in any way intend to minimize whatever medical conditions might be afflicting Debtor's parents. But, particularly in view of Debtor's history of a lack of candor and transparency (see dkt.208, 209, 232), the tentative ruling is that it would be inappropriate to deny the turnover motion based on allegations that are unsupported by any evidence except Debtor's vague declaration.
Debtor also argues that the Jewish High Holidays are occurring off and on from approximately 9/18/20 through 10/9/20. The tenative ruling is that a short delay in turnover is warranted by the combination of these (i) holidays,
(ii) the previously ordered "adequate protection" payments to secured creditors, and (iii) the (weak) evidence that Debtor's parents suffer from medical ailments. The parties are directed to address how long a delay is warranted.
Unauthorized source of funding for Debtor's counsel (dkt.282)
As a preliminary matter, although Debtor is no longer a debtor in possession (dkt.232), nevertheless Debtor continues to have considerable powers and duties, including continued operations in the ordinary course of her business and financial affairs, proposing a chapter 11 plan, etc. This Court is not aware of any authority that would excuse Debtor from continuing to have the same fiduciary obligations (within her decreased scope of authority) as a trustee for the benefit of creditors. Nor is this Court aware of any authority that would permit Debtor's professionals to hold or represent interests adverse to the bankruptcy estate.
In that context, it is troubling that Debtor's bankruptcy counsel reports (dkt.282) having accepted payments for several months from a source other than the bankruptcy estate - namely, Debtor's non-debtor husband, who asserts that he holds considerable assets that are not community property, and who might or might not have interests adverse to the bankruptcy estate. See generally Order re Employment etc., In re The New School Of Cooking (Case No. 2:20-bk-10484-NB, dkt.61). Debtor's counsel is directed to address why authorization for his new compensation arrangement has not
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been sought. Other parties in interest are invited but not required to address any issues arising from this situation.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: see above (& dkt.270)
Continued status conference: 10/6/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208, filed 5/19/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
11 U.S.C. section 542; 3) Avoidance of transfer under 11 U.S.C. section 544; 4) Avoidance of faudulent transfer under 11 U.S.C.
section 548; 5) Recovery and preservation of avoided transfers pursuant to 11 U.S.C. sections 550(a), 551; 6) Unfair Practices under California Business & Professions code section 17200; and 7) Slander of title
fr. 4/21/20
Docket 1
Tentative Ruling for 9/15/20:
Appearances required.
This Court has reviewed the parties' joint status report (dkt. 37) and the other filed documents and records in this adversary proceeding.
Current issues
(a) Apparent waste of resources and/or unwillingness to prosecute This Court continues to have serious concerns why it makes any sense
for Debtor to dispute the alleged security interest of Oxygen Funding, Inc. when (i) Debtor continues to assert that all creditors will be paid 100% of their allowed claims regardless whether those claims are or are not secured by any collateral, (ii) the Bankruptcy Code includes many tools to assure that disputed security interests do not block attempted refinancings, sales, or other uses of estate property (see, e.g., 11 U.S.C. 363(f), 1129(b)(1)), and (iii) the expense of this litigation to the bankruptcy estate appears very likely to exceed any possible future benefits (but cf. dkt.282 re unauthorized funding of Debtor's counsel by non-debtor husband). At prior hearings this Court was persuaded not to take any action on the foregoing concerns, pending mediation, but the parties report (adv.dkt.37) that mediation was unsuccessful.
Conversely, assuming for the sake of discussion that for some reason
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would make any sense to pursue this litigation, Debtor/Plaintiff appears to be unwilling to prosecute it unless and until she can obtain a different forum.
She states, in the parties' joint status report (adv.dkt.37, p.4, para.G) that she will seek dismissal of this bankruptcy case and then pursue this litigation in State Court.
The parties are directed to address whether this Court should (i) stay this litigation indefinitely, pending the results of attempts by Debtor and the Subchapter V Trustee to sell or refinance the "Laurel" property, or confirm a chapter 11 plan, or implement other means of restructuring Debtor's finances,
dismiss this adversary proceeding for lack of prosecution if Debtor/Plaintiff does not prosecute it pursuant to the deadlines tentatively set forth below, or
establish some other deadlines or procedures regarding this matter.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket numbers 26, 37)
Mediation [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 2/10/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 10/30/20 deadline. Discovery cutoff (for completion of discovery): 11/13/20.
Expert(s) - deadline for reports: 11/20/20
Expert(s) - discovery cutoff (if different from above): 11/20/20 Dispositive motions to be heard no later than: 12/22/20
Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 1:00 p.m.
1:00 PM
Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor/Plaintiff's ex parte motion for retroactive extension to file opposition to defendant's motion to set aside default (adv. dkt. 20), order setting hearing (adv. dkt. 22)
Subject to any opposition at the hearing, the tentative ruling is to grant the motion.
Defendants' motion to set aside entry of default (adv. dkt. 12, the "Relief From Default Motion"), Debtor/plaintiff's opposition (adv. dkt. 19), Defendants' reply (adv. dkt. 25)
1:00 PM
Grant, as set forth in the tentative ruling for calendar #2 (4/21/20 at
11:00 a.m.).
Debtor/Plaintiff's motion for entry of default judgment (adv. dkt. 14), order suspending briefing deadlines (adv. dkt. 17, "Default Judgment Motion")
If this Court is persuaded to adopt its tentative ruling for the Relief From Default Motion, the tentative ruling is to deny this motion as moot.
Missing status report(s)
As of the preparation of this tentative ruling, none of the parties have filed joint or unilateral status reports. The parties are cautioned that failure to file status reports in future may result in adverse consequences.
Debtor's duties as a trustee for the benefit of creditors
The tentative ruling is that, as a debtor in possession in a Subchapter V case, Debtor still must exercise discretion in managing the bankruptcy estate as a trustee for the benefit of creditors. See 11 U.S.C. 1101(1), 1181(a) (making section 1107 inapplicable), 1187 (making many duties applicable). This Court has previously expressed concerns about Debtor's similar tactics against creditor National Commercial Recovery ("NCR"). See adv.dkt.25, pp.10:1-24 & 14:3-17.
In particular, the tentative ruling is that Debtor must make a cost/benefit assessment in connection with all litigation in this bankruputcy case. Debtor is directed to address how her tactics in this matter are consistent with her duties to creditors.
Why is it cost-effective to pursue this litigation seeking to establish that Defendants lack a secured claim, when Debtor anticipates a 100% dividend to all creditors regardless whether they are secured or unsecured?
Why has Debtor not pursued options that might stop the running of high rates of interest on this and other claims, such as expeditiously seeking confirmation of a plan, or selling or refinancing properties.
In other words, is this litigation a waste of resources and time that would be better spent on other matters?
Proposed orders: Defendants are directed to lodge proposed orders on each of the foregoing motions via LOU within seven days after the hearing date and attach a copy of this tentative ruling, thereby adopting
1:00 PM
it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 5/8/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
1:00 PM
Deadlines
This adversary proceeding has been pending since 2/10/20. [Remainder intentionally omitted.] Continued status conference 9/15/20 at 11:00 a.m., with a joint status report due 9/1/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolvingt this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20, 8/18/20, 9/1/20
Docket 247
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar no. 2, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (Calendar no. 11, 9/1/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20, 5/19/20, 7/14/20, 7/28/20, 8/4/20
BOBS, LLC
vs DEBTOR
Docket 936
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
1:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20, 7/14/20, 7/28/20,
8/4/20
Docket 1
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
1:00 PM
Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
Ownership and Equity Protection Act; 3. Unfair Practices Act Under California Civil Code Section 17200; 4. Breach of Fiduciary Duty; and 5. Declaratory Relief fr. 9/24/19, 11/5/19, 1/28/20, 3/10/20
Docket 1
Tentative Ruling for 9/15/20:
Continue as set forth below. Appearances are not required.
This Court has reviewed the parties' joint status report (dkt. 32) and the other filed documents and records in this adversary proceeding.
Current issues
The tentative ruling is that Defendant is correct that Plaintiff's request for leave to file a second amended complaint must be made by filing and serving a noticed motion on interested parties, presumably including all parties who are sought to be joined and all extant parties. See Rule 7015 (Fed. R. Bankr. P.) (amendment of pleadings) and Rule 9013 (Fed. R. Bankr. P.) (requests for order must be by motion unless otherwise authorized by rules).
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties have stated their positions (see adv.dkt. 14 & 19, p.4, para.
F) and this Court has not yet ruled on these issues.
1:00 PM
Mediation [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 7/22/19. Joinder of parties/amendment of pleadings: N/A
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/8/20.
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
1:00 PM
DOES 1-10 Pro Se
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
1:00 PM
fr. 10/29/19, 11/5/19, 12/17/19, 1/28/20, 03/31/20, 5/5/20, 7/14/20
Docket 51
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 7, 9/15/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 1
Tentative Ruling for 9/15/20:
Continue, subject to the relief set forth below. Appearances are not required on 9/15/20.
Current issues
Continued hearing on cash collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113, 124, 143), Hanmi's supplemental statement (dkt. 104)
The tentative ruling is to approve the use of cash collateral on a final basis, on the same terms as previously ordered (subject, as always, to Hanmi's rights to seek relief in the event that Debtor's finances change or there are other grounds to seek to amend the terms for use of cash collateral in order to provide adequate protection).
Late status report
This Court's adopted ruling for 7/14/20 directed Debtor to file a status report by 9/1/20. The status report was filed on 9/9/20. Debtor is reminded to file status reports timely, and is reminded that belated reports impede parties' and this Court's ability to prepare for hearings.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 10/14/20 (dkt. 78, 138)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 11/10/20 at 1:00 p.m., Brief written status report due 10/27/20.
1:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Continued hearing on interim collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113, 124), Hanmi's supplemental statement (dkt. 104)
There is no tentative ruling. The parties should be prepared to address whether Hanmi will consent to further use of its cash collateral. Given the number of continuances of this matter, the parties are directed to address whether this Court should grant the motion on a final basis (subject, as always, to Hanmi's rights to seek relief in the event that Debtor's finances change or there are other grounds to seek to amend the terms for use of cash collateral in order to provide adequate protection).
Deadlines/dates. This case was filed on 7/31/19.
1:00 PM
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 8/14/20 (dkt. 78)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 9/15/20 at 1:00 p.m., Brief written status report due 9/1/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 50
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 9, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 7, 8/18/20 at 2:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 9/15/20:
Appearances are not required on 9/15/20.
Current issues
Debtor's Amended Subchapter V Plan (dkt. 54) and Amended Disclosure Statement (dkt. 55), no opposition is on file
The tentative ruling is to set a deadline of 9/18/20 to lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Amended Disclosure Statement and confirmation of the Amended Plan for the same time as the continued status conference (see below).
Debtor's notice of setting/increasing insider compensation (filed with UST), First Home Bank's opposition (dkt. 47) & request for hearing (dkt. 49), UST's opposition (dkt. 48), notice of hearing (dkt. 50), Supplemental Russell declaration (dkt. 56)
The tentative ruling is to allow the proposed insider compensation for Rebecca Russell in the reduced amount of $2,911.87/month.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one
1:00 PM
has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
AmPlan/AmDisclosure Statement*: see above.
Continued status conference: 11/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
for allowance and payment of compensation and reimbursement of expenses or the period of January 1, 2018 through June 30, 2020 fr. 9/1/20
Docket 502
Please see the tentative ruling for the status conference (Calendar No. 11, 9/15/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20
Docket 323
Tentative Ruling for 9/15/20:
Appearances required.
Current issues
Second interim fee application of Pachulski Stang Ziehl & Jones LLP (dkt. 502, 503, 506), stipulation re reduction in fee amount (dkt. 518, "Fee Reduction Stipulation") and order thereon, no opposition is on file
Applicant is directed to address whether all parties in interest were required to receive notice of the fee application. See Rule 2002(a)(6) (Fed.
R. Bankr. P.). If that issue is adequately addressed, the tentative ruling is to approve second interim fees of $1,176,400 ($1,202,010 [amount requested in application] - $25,610 [per Fee Reduction Stipulation]) and expenses of
$51,187.12, for a total interim award of $1,227,587.12 for the period 1/1/18 - 6/30/20.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
1:00 PM
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 12/8/20 at 11:00 a.m., concurrent
with status conferences in related matters, provided that, prior to that hearing (and after this Court has established hearing dates for 2021), this Court anticipates posting a tentative ruling further continuing the status conferences into 2021.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 7/14/20, 8/4/20
Docket 172
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 14, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 8/4/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
fr. 6/30/20, 8/4/20
Docket 159
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 14, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 8/4/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
4/21/20, 6/30/20, 7/28/20, 8/4/20
Docket 42
Revised Tentative Ruling for 9/15/20:
Continue to 9/29/20 at 1:00 p.m. Appearances are not required on 9/15/20.
Reasons: At the hearing on 8/4/20 this Court ruled that after supplemental papers on 8/18/20 this matter would be taken under submission. Due to unanticipated events this Court has been unable to render a decision, but anticipated being able to do so shortly.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
This Court anticipates posting a tentative ruling at a later time.
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
1:00 PM
for an Order: (1) Authorizing the Assumption of Mediation Term Sheet; and (2) Enforcing Compliance with Mediation Settlement
Docket 67
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 60
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
YUNUEN CAMPOS
vs DEBTOR
Docket 22
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
Yunuen Campos Represented By Lauren A Dean
1:00 PM
fr. 8/18/20
Docket 51
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 9/15/20:
Appearances required.
Proposed orders: Debtor is directed to lodge proposed orders on each of the following motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the proposed order on the Assumption Motion, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103)
The tentative ruling is to grant the Budget motion on a further interim basis (except as modified in section 1(b) below) and set a further continued hearing concurrent with the status conference (see below).
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to pay Ms. Howerton monthly compensation of $6,000, retroactive to July 2020, on an interim basis, and set a further continued hearing concurrent with the status conference (see below) pending additional evidence from Debtor’s accountant.
Motion to assume and enforce settlement agreement (dkt. 67, the "Assumption Motion"), supporting declarations & request for judicial notice (dkt. 68, 69, 70) Ms. Campos' opposition (dkt. 89, 91) & evidentiary objections (dkt. 90), Debtor's response to evidentiary objections (dkt. 104) & reply (dkt.
1:00 PM
105), Ms. Campos’ evidentiary objections (dkt. 106)
The tentative ruling is conditionally to grant the Assumption Motion in part, without any evidentiary hearing, for the following reasons. (i) This Bankruptcy Court has "arising under" jurisdiction. (ii) The mediation term sheet lacked agreement on an essential term to make it noncontingent - the dollar amount and other terms to be offered by Ms. Campos to settle with a third party - and Debtor has not established that this contingency can be eliminated by any judicial determination of a dollar amount and other terms that Ms. Campos allegedly "should" have offered to comport with the duty of good faith and fair dealing. (iii) Nevertheless, as of the date of the bankruptcy petition the conditional agreement embodied in the mediation term sheet still existed; and if Ms. Campos is not required to pay anything more than her highest offer to settle the Fuller matters then, to that extent, Debtor's theory of good faith and fair dealing can apply, such that she could not deny that the condition is satisfied. Accordingly, if Debtor is willing to absorb the cost of settling the Fuller matters above what Ms. Campos previously agreed to pay, then the mediation term sheet is enforceable - otherwise not.
Jurisdiction
The parties dispute whether this Bankruptcy Court has jurisdiction. See 28 U.S.C. 1334. In addition, this Court has an independent duty to consider its own jurisdiction. In re AWTR Liquidation Inc., 547 B.R. 831, 833 (2016).
Ms. Campos argues that this Court lacks jurisdiction under Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). Ms. Campos cites a decision in which a Bankruptcy Court held that, under Kokkonen, it lacked post-dismissal jurisdiction over a settlement allegedly agreed to during the bankruptcy case. In re Hanks, 182 B.R. 930 (Bankr. ND Ga. 1995).
One of Debtor's arguments is that Kokkonen includes an exception when the federal court's dismissal order retains jurisdiction. It is true that this Bankruptcy Court's dismissal order included language retaining jurisdiction.
On the one hand, the tentative ruling is that this language would not be broad enough to adjudicate a run-of-the-mill contract dispute (if that were all that is at issue).
The dismissal order provides that this Court "retains jurisdiction on all issues involving sanctions [and other irrelevant grounds] ... and to any additional extent provided by law." Dismissal Order (Ex.2 to Reply, dkt.105,
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at PDF pp.15-17) (emphasis added). The problem for Debtor is that, under Kokkonen, the "additional extent provided by law" does not include ordinary post-dismissal disputes over alleged settlements.
On the other hand, the tentative ruling is that Debtor's alternative argument is correct: the mediation term sheet, just like any other purported contract sought to be assumed, is subject to this Bankruptcy Court's jurisdiction. See dkt.105, p.7:5-12. Any ability to assume the contract arises under the Bankruptcy Code (11 U.S.C. 365), and an essential element of assumption is the determination whether an assumable contract exists. In other words, this is not just a run-of-the-mill contract dispute: it is part and parcel of issues that arise under section 365.
Any contrary ruling would not make sense. Motions to assume executory contracts and unexpired leases could not be litigated at all if Bankruptcy Courts lacked jurisdiction to address the inevitable subsidiary issues: everything from whether a contract was formed to whether it was terminated prepetition, who breached it, what damages have been incurred, whether those damages amount to penalties that need not be cured, etc., etc. See generally AWTR, 547 B.R. 831, 833-37 (discussing "arising under" jurisdiction and authority, and Bankruptcy Courts' ability to determine issues necessarily addressed in determining issues arising under the Bankruptcy Code).
For these reasons, the tentative ruling is that this Bankruptcy Court has subject matter jurisdiction.
The mediation term sheet lacked agreement on an essential term to make it noncontingent - the dollar amount to be paid by Ms. Campos to settle with a third party
Debtor argues that the mediation term sheet contains all of the essential terms of the parties’ agreement, is signed by both parties, and was intended to be a binding (albeit conditional) agreement. Dkt. 67,
pp.14:12-17:9. The tentative ruling is that Debtor has established prima facie evidence of all of those things, but that as long as the contingency exists the agreement cannot be enforced.
Paragraph 10 of the mediation term sheet (id., Ex.1, at PDF p.37) states in relevant part that "[t]he settlement is contingent upon Campos’ negotiating a settlement with Bertram Fuller ...." (Emphasis added.) Ms. Campos argues that this is a condition precedent that has not been satisfied,
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which renders the mediation term sheet unenforceable. Dkt. 89, p.14:9-18. Debtor counters that, regardless whether paragraph 10 is a condition precedent or (as Debtor argues) a condition subsequent, Ms. Campos failed to use good faith to fulfill the contingency. Dkt. 105, pp.2:6-6:16.
The parties devote considerable time and effort to addressing whether or not Ms. Campos attempted to settle in good faith. The tentative ruling is that this is not a justiciable question.
Debtor has not cited any legal authority that this Bankruptcy Court can and should determine whether a party to a settlement agreement, which is itself conditioned on settling with a third party, acted in good faith in deciding how many dollars to offer that third party and any other settlement terms. Nor is this Bankruptcy Court aware of such authority.
To the contrary, paragraph 10 appears to be an agreement to agree, which is generally unenforceable. The fact that the issue reserved for future agreement was the terms of a settlement with a third party only makes matters worse.
Under Debtor's theory, he and Ms. Campos had an agreement that was contingent on Ms. Campos' negotiation of a future agreement with a third party in an unspecified dollar amount, to be paid over an unspecified period of time, with unspecified other terms and conditions. Without having set forth in the mediation term sheet the range of terms that Ms. Campos could agree to, Debtor now asks this Bankruptcy Court to determine what range he and Ms.
Campos alleged would have agreed to, had they finished negotiating every term of the mediation term sheet, under the implied covenant of good faith and fair dealing.
The tentative ruling is that this is the very definition of an agreement to agree. Such amorphous agreements are unenforceable - at least, until the contingency is removed. See, e.g., City of L.A. v. Superior Court of L.A. Cnty., 51 Cal.2d 423, 433 (1959) ("The general rule is that if an ‘essential element’ of a promise is reserved for future agreement of both parties, the promise gives rise to no legal obligation until such future agreement is made") (citation omitted).
Alternatively, even if paragraph 10 of the mediation term sheet were not an agreement to agree, the same principles should apply. Just as agreements to agree are too amorphous to be enforceable, there is no yardstick by which this Bankruptcy Court can determine whether Ms. Campos did or did not act in good faith by not offering a higher dollar amount, or
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sooner payment, or other terms.
In sum, Debtor has not established that the mediation term sheet is enforceable, as long as the contingency in paragraph 10 continues to exist. But that last clause is important because Debtor apparently has settled part of the Fuller matters, and has an option to settle the rest (dkt. 67, p.22:19-26).
If the contingency is removed then the mediation term sheet becomes enforceable
As of the date of the bankruptcy petition the conditional agreement embodied in the mediation term sheet still existed. Therefore, unlike a situation in which a contract has terminated prepetition, there is something to be assumed.
True, as Ms. Campos points out, neither Debtor nor she performed the other terms of the mediation term sheet, such as Debtors obligation to make monthly payments. But that is the whole point of section 365: debtors in bankruptcy can cure defaults (even many defaults that could not be cured outside of bankruptcy).
As noted above, "[t]he general rule is that if an ‘essential element’ of a promise is reserved for future agreement of both parties, the promise gives rise to no legal obligation until such future agreement is made." City of L.A., 51 Cal.2d 423, 433 (1959) (emphasis added). Therefore, for example, if Ms. Campos were to have reached a settlement of the Fuller matters then, at that moment, the mediation term sheet would have become enforceable.
But the equivalent of that outcome can still happen. Consider what would happen if Debt has simply settled the Fuller matters (rather than purchasing the judgments/claims). In that event, the contingency would have become moot, thereby eliminating Ms. Campos' objection to the enforceability of the mediation term sheet.
The tentative ruling is that Debtor need not go that far. There is evidence that Ms. Campos offered $60,000 to settle the Fuller matters (see dkt. 89, p.8) That changes the amorphous state of affairs that existed when the parties signed the mediation term sheet. The tentative ruling is that any refusal by Ms. Campos now to apply that same $60,000 that she offered before to settle the Fuller matters would be a violation of the covenant of good faith and fair dealing. In that situation, the tentative ruling is that Ms. Campos has not overcome Debtor's arguments that the mediation term sheet will be a curable, assumable, enforceable contract.
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In other words, the tentative ruling is that if Debtor is willing to absorb
the cost of settling the Fuller matters above the $60,000 that Ms. Campos previously agreed to pay, then Ms. Campos has not adequately rebutted Debtor's arguments in favor of granting the Assumption Motion. But, if Debtor is unwilling to absorb that cost, then the parties are left with an agreement to agree, which is unenforceable.
Conclusion as to the Assumption Motion
There is no precedent of which this Bankruptcy Court is aware for holding a trial to assess Ms. Campos' "good faith" in exploring settlement of the Fuller matters. Moreover, as a practical matter, doing so would be highly impractical.
Presumably this Court not only would have to take evidence regarding the underlying merits of Ms. Campos' disputes with Bertram Fuller, but also would have to take evidence on the "meta-issue" of whether, based on Ms.
Campos' subjective beliefs as to those merits, she did or did not make or receive settlement offers in "good faith." More precisely, this Court would have to determine whether an offer of $X over Y months with Z contingencies was too little, but $Z' over X' months with Y' contingencies would be enough to constitute "good faith." The process just described would include layers of expensive litigation and uncertainty.
The tentative ruling is that such litigation over Ms. Campos' good faith is not legally warranted, not practical, and not necessary. Rather, applying California precedent cited above regarding agreements to agree, Debtor can either hold Ms. Campos to her highest and best offer and thereby remove the contingency in paragraph 10, or Debtor can elect not to do so. In the latter event, the parties will be left with an unenforceable agreement (and they can continue litigating as before, or Debtor can explore other options).
Yunuen Campos' motion for relief from the automatic stay (the "R/S Motion," dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56), Ms. Campos' supplemental briefing (dkt. 66, 82), Debtor's supplemental briefing (dkt. 71, 72), scheduling order (dkt. 88), Ms. Campos' second supplemental reply (dkt. 102)
The tentative ruling is to direct Debtor to continue making monthly transfers of $10,000 into Counsel’s client-trust account, subject to Debtor’s
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proposed procedures for a reduction in that amount in the event of unforeseen circumstances. The tentative ruling is to continue the matter with respect to Ms. Campos’ interest in pre- and post-petition accounts receivable, to be heard concurrent with the continued status conference (see below), with a deadline of 9/18/20 for Debtor’s response to Ms. Campos' second supplemental reply.
The foregoing tentative ruling presumes Ms. Campos' consent to a further extension of the time period in 11 U.S.C. 362(e). Alternatively, if Ms. Campos does not wish to consent, she is directed to say so at the hearing, and this Court will address whether her second supplemental reply constitutes implied consent and, if not, make a final ruling on the R/S Motion.
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/29/20 at 1:00 p.m. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
This Court anticipates posting a tentative ruling at a later time.
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Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57)
There is no tentative ruling. The parties are directed to address the issues raised in Ms. Campos' opposition (dkt. 57). Debtor is also directed to explain the proposed expenditure of $800/mo. for "Personal Care, South Bay Family-Emily."
As to all questioned expenditures, Debtor is directed to address why they are monthly transactions "in the ordinary course" of Debtor's business (11 U.S.C. 363(c)(1)), or otherwise authorized by the Bankruptcy Code. See Dkt.51, Ex.A at p.6 (PDF p.7) (last line on page). See generally In re Villalobos, 2011 WL 4485793, 2011 Bankr.LEXIS 4329 (9th Cir. BAP August 19, 2011) (noting uncertain legal standards applicable to budget review); In re Seely, 492 B.R. 284, 290-291 (Bankr. C.D. Cal. 2013) (approval required for living expenses or other expenses out of ordinary course in individual chapter 11 case); In re Goldstein, 383 B.R. 496, 499 (Bankr. C.D. Cal. 2007) (same); and cf. In re Salazar, 465 B.R. 875 (9th Cir. BAP 2012) (citing cases re same in chapter 13). See also In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246) (permissible expenses for disposable income requirement in 11 U.S.C.
1129(a)(15)).
Patient care ombudsman motion (dkt. 28), proof of service (dkt. 37), no opposition is on file
The tentative ruling is to grant the motion.
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Debtor's motion for leave to file documents under seal (dkt. 41),
Yunuen Campos' response (dkt. 44), Debtor's reply (dkt. 45), order setting hearing (dkt. 47)
Debtor moves for an order authorizing him to file under seal a motion authorizing the assumption of a mediation term sheet between Debtor and Yuneun Campos. Ms. Campos objects to the admissibility of the mediation term sheet on the grounds that it is protected by the evidence exclusion provision pursuant to California Evidence Code section 1119. The tentative ruling is to grant the motion as follows.
Applicable law
"Privileges are narrowly construed, because they impede the full and fair discovery of truth." Yeager v. Yeager, 2008 U.S. Dist. LEXIS 74245, at *3 (E.D. Cal. Sep. 25, 2008) (citing Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981)). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Id. (quoting Torney v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988)).
"Under Federal Rule of Evidence 501, privileges provided by state law apply in civil actions only ‘with respect to an element of a claim or defense as to which State law supplies the rule of decision." Babasa v. LensCrafters, Inc., 498 F.3d 972, 974 (9th Cir. 2007) (citing Fed. R. Evid. 501; Breed v. U.S. Dist. Court for the N. Dist. Of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)). "State contract law governs how settlement agreements are construed and enforced, even if the underlying cause of action is federal." Karubian v.
Kaiser Ventures, LLC, 2018 U.S. Dist. LEXIS 235252, at *12 (C.D. Cal. Oct. 17, 2018) (citing United Commercial Ins. Serv., Inc., v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992)). Therefore, California privilege law applies.
Two relevant provisions apply. First, California Evidence Code § 1119 states, in relevant part:
Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made . . . in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . noncriminal proceeding (b) No writing . . . prepared in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the writing shall not be compelled in any . . . noncriminal proceeding . . . (c) All communications . . . by
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and between participants in the course of a mediation . . . shall remain confidential.
Second, California Evidence Code § 1123 states, in relevant part:
A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected
from disclosure . . . if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect.
This Court notes that the foregoing provisions are also consistent with the Rules 6.1 and 6.5 set forth in Appendix III of the Local Bankruptcy Rules, governing mediations in this district.
As the party asserting the privilege, Ms. Campos bears the burden of demonstrating that the exception set forth in California Evidence Code § 1123 do not apply. The tentative ruling is that Ms. Campos has not carried that burden. In support of her opposition, Ms. Campos simply concludes that "the requirements of California Evidence Code are not met to render any of the exhibits admissible" and "[t]here is no doubt the Mediation Term Sheet is inadmissible and confidential." Dkt. 44, p.3: 5-6 & 20-21. This is not sufficient.
Alternatively, the tentative ruling is that authorizing the Debtor to file the Mediation Term Sheet under seal will enable this Court to determine whether an exception to California Evidence Code § 1123 applies while still protecting the contents of the document from public disclosure.
Yunuen Campos' motion for relief from the automatic stay (dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56)
The tentative ruling is to grant in part, deny in part, for the reasons stated in the tentative ruling for that motion (Calendar No. 12, 8/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final
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ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
as Executive Managing Director of Colliers International Greater Los Angeles, Inc.
Docket 138
Please see the tentative ruling for the status conference (Calendar No. 20.1, 9/15/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
1:00 PM
Docket 5
Tentative Ruling for 9/15/20:
Appearances required.
Current issues
Debtor's application to employ Colliers International Greater Los Angeles, Inc., dba Colliers International ("Colliers") (dkt. 138-140, 142, the "Employment Application"), Criscione-Meyer Parties' opposition (dkt. 144), Tarzana Crossing's opposition (dkt. 146, 149), Debtor's replies (dkt. 150, 151, 152, 157)
The tentative ruling is (i) to overrule the objections for the reasons stated in Debtor's reply papers (except to the extent of Debtor's and Colliers' accession to the 6-month term in Debtor's reply papers) but (ii) to prohibit dual agency as set forth below. The "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov) provide notice that Judge Bason's standard employment order prohibits dual agency, and refer to an explanation of the problems with dual agency as set forth in another case. See In re Ebuehi, Case No. 2:18-bk-20704-NB, dkt. 281, at PDF pp.9-10). Nothing in the Employment Application provides any reason to depart from that policy.
Notwithstanding the foregoing, the tentative ruling is that the dangers inherent in dual agency are substantially ameliorated if (i) the individual(s) who represent the bankruptcy estate as seller operate out of a different branch office from the office of any individual(s) who represent prospective buyers and (ii) the compensation structure is structured in a way that does not implicate the concerns raised in Ebuehi. The tentative ruling is that, if Debtor and Colliers with to attempt to meet these conditions, then this Court will set a deadline of 9/22/20 to file declaration(s) addressing these conditions (including a detailed disclosure of the compensation structure), and serve such declarations on the United States Trustee and all parties in interest who
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attend this hearing. Alternatively, if they do not wish to pursue that alternative, the tentative ruling is to condition any approval of the Employment Application on an absolute bar on any dual agency - i.e., no person at Colliers may represent any prospective buyer.
Proposed order: If this matter is not continued, and this Court is persauded to grant the Employment Application immediately, Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
1:00 PM
1:00 PM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20, 5/5/20, 6/30/20, 7/28/20, 9/1/20
Docket 1
Tentative Ruling for 9/15/20:
This Court anticipates issuing a written tentative ruling prior to the hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
Docket 178
Please see the tentative ruling for the status conference (calendar no. 12, 9/1/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
1:00 PM
#23.00 Cont'd Combined hrg re: Final Approval of Disclosure Statement and Confirmation of Plan fr. 6/30/20, 7/28/20, 9/1/20
Docket 124
Please see the tentative ruling for the status conference (calendar no. 20, 6/30/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
2:00 PM
Adv#: 2:20-01172 Tellez et al v. FCI LENDER SERVICES, INC. et al
Docket 8
- NONE LISTED -
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Defendant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds Joseph P Buchman
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds
2:00 PM
Joseph P Buchman
Plaintiff(s):
Sergio Tellez Represented By
Anthony P Cara
Roseanna Tellez Represented By Anthony P Cara
2:00 PM
BAODI ZHOU
vs DEBTOR
Docket 50
Please see the tentative ruling for the Status Conference (calendar no.4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 49
Please see the tentative ruling for the Status Conference (calendar no.4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 15
Tentative Ruling for 9/15/20:
Continue as set forth below. Appearances are not required on 9/15/20.
Current issues
Motions of Baodi Zhou for relief from automatic stay or dismissal (dkt.49, 50, 59); Debtor's opposition (dkt.62), no reply is on file
The tentative ruling is to deny Ms. Zhou's request for dismissal and deny any immediate relief from the automatic stay for the reasons stated in Debtor's opposition papers. But the tentative ruling is to continue the motions to be concurrent with the continued Status Conference date (see below), so as re-assess at that time what progress has or has not been made in this case, and whether Debtor and its affiliates are making appropriate use of their bankruptcy "breathing spell."
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with several affiliated debtors (dkt.64).
Bar date: 9/9/20 (dkt. 40; timely served, dkt. 43).
Procedures order: dkt.18 (timely served, dkt.20)
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/29/20 at 1:00 p.m. to be concurrent with other matters (no written status report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
11:00 AM
re: Civil Contempt and Directing (i) Debtor, (ii) Freda Wang,
(iii) Thomas Polis, (iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions fr. 8/19/20
Docket 173
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
8:30 AM
Docket 37
- NONE LISTED -
Debtor(s):
Beatrice Lopez Represented By Axel H Richter
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 34
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 36).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Aaron Scott Brooks Represented By Nima S Vokshori
Joint Debtor(s):
Jamecia Carthaya Brooks Represented By Nima S Vokshori
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 102
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee and whether Debtor has sufficiently addressed those concerns (dkt. 109).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Nelson Enrique Gomez Represented By Maria C Hehr
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 50
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Carol Y Espina Represented By Jacqueline D Serrao
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 54
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 57) and Debor's response (dkt.61).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Maria De La Cruz Gonzales Represented By Rebecca Tomilowitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 24
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Carlos G. Moreno Represented By
David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 25
Grant the motion and authorize conversion to Chapter 11 without the Subchapter V election for the reasons stated in the Internal Revenue Service's opposition (dkt. 27). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Internal Revenue Service's opposition (dkt. 27), Debtor's reply (dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Mario Jacquette Howard Represented By Michael R Totaro
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 25
Deny. Appearances are not required.
Proposed order: Cavalry Investments, LLC is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Cavalry Investments, LLC's ("Cavalry") opposition (dkt. 28)
Reasons for denial: The tentative ruling is to deny the claim objection based on the evidence filed in support of Cavalry's opposition.
Lack of cost/benefit analysis: The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
Debtor's counsel is cautioned that failure to include a cost/benefit analysis in future claim objections in accordance with Judge Bason's Procedures may
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result in adverse consequences.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Juan Carlos Ulloa Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Charina Antoinette Ulloa Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 38
Sustain the claim objection in part, overrule it in part, and continue the hearing, all as set forth below. Appearances required.
Key documents reviewed (in addition to motion papers): BBV Profit Sharing Plan ("BBV") opposition papers (dkt. 40, 41), Debtor’s reply (dkt. 42), BBV’s unauthorized sur-reply (dkt. 43), BBV’s amended proof of claim 6-2 ("AmClaim")
Analysis:
Advances of funds to the senior lienholder
Nonbankruptcy law
The tentative ruling is that Debtor is correct that under nonbankruptcy law a junior lienholder is not authorized to advance more funds than what is necessary to cure any arrears on a senior lien (Cal. Civ. Code 2924c(a)(1)) and BBV has not demonstrated that it was necessary to advance $91,930.10 to the senior lienholder, when it appears that the senior lienholder’s arrears as of the petition date were only $47,356.58 (see dkt. 38, Ex.C). Therefore, to the extent the advances exceeded the amount of any default (i.e.,
$91,930.10 - $47,356.58 = $44,573.52), they were unauthorized under nonbankruptcy law.
The parties have not briefed the consequences of making such an unauthorized transfer. One remedy might be for BBV, Debtor, and/or the senior lien holder to seek to unwind BBV's unauthorized payment of
$44,573.52 to the senior lien holder. In that event, presumably, Debtor would once again owe the excess $44,573.52 to the senior debt holder, and BBV's claim would be reduced by that same dollar amount. But that does not appear to have happened, so the question is what consequences follow from BBV's unuthorized payment of the senior debt.
The tentative ruling, in the absence of cited authority from either party,
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is that California law must be construed so as to treat BBV's payment of the senior debt as an unauthorized loan that attempts to replace the (lower) interest rate under the senior loan documents with the (higher) interest rate under the junior loan documents, and that this is impermissible. BBV has not cited authority that someone who makes a loan without authority to do so can charge any interest on that unauthorized loan. Therefore, the tentative ruling is that BBV cannot charge any interest prior to the effective date of any plan; although, after the effective date, it would have to bear "present value" interest pursuant to 11 U.S.C. 1325(a)(5)(B)(ii). In other words, the senior debt paid by BBV does not simply disappear (which would be a windfall to Debtor), but nor can BBV charge (higher) interest on that debt (which would be a windfall to BBV).
Bankruptcy law
All of the foregoing analysis under nonbankruptcy law may be mooted by the superseding effect of bankruptcy law. It appears that both of BBV's payments are void as a matter of bankruptcy law.
BBV's checks are dated 7/8/20 - the same day that Debtor's prior bankruptcy case was dismissed (Case No. 2:18-bk-18060-NB). This Court presumes for purposes of this discussion that the checks were issued after the dismissal (and therefore this Court will not address whether the checks violated the automatic stay in that prior case). This Court also presumes, for purposes of this discussion, that the checks were mailed on or about the same date. But the timestamps reflect that the checks were not received and/or deposited by the senior lienholder until after the 7/10/20 petition date in this current case. The checks apparently were deposited on 7/13/20 and 7/17/20 (see AmClaim, pdf pp. 6-7).
The parties have not briefed which of these dates is relevant, but the tentative ruling is that the date of deposit is the date when BBV's lien against Debtor's real property was increased, and that this constituted a "transfer" of an interest in that property and an "exercise of control" over property of the estate, in violation of the automatic stay of 11 U.S.C. 362(a)(3). Alternatively the tentative ruling is that each transfer constituted an act to obtain "possession" of property of the estate in violation of the other clause of 11
U.S.C. 362(a)(3), or an act to "create, perfect, or enforce a lien" against property of the estate in violation of 11 U.S.C. 362(a)(4). On each of these alternative grounds, BBV's advances violated the automatic stay and therefore are void ab initio. See generally 11 U.S.C. 11 U.S.C. 101(50)
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("transfer" defined); cf. In re Lee, 179 B.R. 149, 158-59 (9th Cir. BAP 1995) (date of "transfer" involving perfection of lien, under 11 U.S.C. 547), aff’d 108 F.3d 239, 241 (9th Cir. 1997); In re Hagen, 922 F.2d 742, 745 (11th Cir.
1991) (same); see also In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992) (acts in violation of automatic stay are void).
Note: The tentative ruling is that the transfers also likely constituted avoidable unauthorized postpetition transfers (11 U.S.C. 549(a)), and/or unauthorized post-petition loans (11 U.S.C. 364), which had the effect of replacing a senior encumbrance bearing a low interest rate with BBV’s encumbrance bearing a higher interest rate. But the tentative ruling is that this Court cannot make any ruling on those issues because they would require an adversary proceeding. See Rules 3007(b), 7001(1) (Fed. R. Bankr. P.).
The bottom line is that, in making payments to the holder of the senior lien, BBV violated the automatic stay and therefore both advances are void. BBV argues that there is no harm because Debtor owed the money anyway, but as a practical matter, BBV effectively increased the interest rate that Debtor must pay, which ultimately takes away from any recovery for junior creditors and jeopardizes Debtor's ability to reorganize.
Again, this Court is not ruling that Debtor will receive a windfall. If this Court adheres to the foregoing tentative ruling then the transfers from BBV to the senior lien holder were void, so presumably the senior lienholder must return the $91,930.10 to BBV and Debtor's debt to the senior lienholder will increase by that same dollar amount. That said, the senior lienholder has not been made a party to these proceedings, and Debtor has not commenced any proceeding to compel turnover by the senior lienholder (see 11 U.S.C.
542; Rule 7001(1), Fed. R. Bankr. P.). In addition, if BBV's entire $91,930.10 transfers were to be unwound then Debtor might owe additional interest, late charges, and other charges to the senior lienholder, and there might be other consequences.
Accordingly, although the tentative ruling is that BBV's $91,930.10 in advances were void (because, by increasing BBV's lien, they violated the automatic stay), the tentative ruling is that it would be premature to disallow BBV's claim for those funds at this time. Rather, the tentative ruling is to direct Debtor and BBV to meet and confer, and for both of them to communicate with the holder of the senior lien, to attempt to resolve this matter.
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Foreclosure and Bankruptcy Attorneys Fees and Costs
Foreclosure fees, costs & interest thereon
The tentative ruling is to overrule Debtor’s objection to BBV’s foreclosure fees, costs and interest because BBV’s response cites the applicable loan provision that purportedly entitles it to collect these fees/costs (dkt. 40, p.8:1-9) and Debtor’s reply does not renew any challenges to these items.
Reasonableness of attorneys’ fees & costs
The tentative ruling is to overrule the objection as to the reasonableness of the amounts charged because BBV’s opposition papers attach time records (dkt. 40, Ex.2, pdf pp. 30-40 & dkt. 41), which appear to provide adequate support for the reasonableness of its fees.
Rule 3002.1(c) (Fed. R. Bankr. P.)
First, the tentative ruling is that it is appropriate for this Court to reach the merits of this issue because although Debtor raised this issue for the first time in her reply papers (a) it appears to be in response to new information provided in BBV’s opposition and (b) there is no prejudice to BBV because it filed the unauthorized sur-reply (dkt. 43) responding to these arguments.
Second, on the merits, the tentative ruling is that Debtor appears to be correct that BBV did not comply with Rule 3002.1(c) by filing timely notices of postpetition mortgage fees, expenses and charges in the Prior Case.
Although BBV points out (dkt. 43) that any noncompliance was in the Prior Case, the tentative ruling is that for the following reasons this issue is properly raised in this current case.
The tentative ruling is that the burden is on BBV to show why charges that it was supposed to have noticed in the prior case should survive and be chargeable in this case. In addition, if necessary this Court could reopen the prior case and decide the issues in that case instead of in this one, but because this Court presided over the Prior Case that would appear to be form over substance, and any insistence by BBV on parties incurring the expense of reopening might be appropriately charged to BBV as part of this Court's discretion under Rule 3002.1(i) to award "appropriate relief."
All of that said, neither side has cited any authority interpreting Rule 3002.1; Debtor has not shown how she was prejudiced by BBV's nondisclosure of its charges in the Prior Case; and just as Debtor is having another bite at the apple in this current case perhaps BBV should as well - in
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other words, BBV's apparent violation of Rule 3002.1 does not appear to have caused any cognizable prejudice, and both parties did not fully live up to their obligations in the prior bankruptcy case, so the tentative ruling is that an "appropriate remedy" under Rule 3002.1(i) is probably not to reduce BBV's claim. Therefore the tentative ruling is to overrule Debtor's objection on this ground.
Interest Rate
The tentative ruling is to overrule the objection for the reasons stated in BBV’s opposition papers.
Unapplied funds from Debtor’s prior bankruptcy case
The tentative ruling is that this objection appears to be moot in view of BBV’s filing of an Amended Proof of Claim crediting Debtor for all payments made during the Prior Case.
Conclusion
The tentative ruling is not to adopt any of the foregoing tentative rulings on any final basis, and instead to direct the parties to meet and confer, and communicate with the holder of the senior lien, and meanwhile continue this matter to 10/22/20 at 8:30 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 19
Deny as moot in view of Mr. Goldbach's Disclosure of Compensation (dkt. 24). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Ruth Francois Jefferson Represented By Marc A Goldbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 26
Deny. Appearances are not required.
Analysis: Mr. Goldbach's responsive declaration (dkt. 40) adequately supports the $1,690 already received. True, as the United States Trustee points out (dkt.42, p.2) only a skeletal bankruptcy petition was filed and it is unclear how much progress was made on other documents. But (a) competent representation usually requires substantial work both before and after filing the petition and, even after Debtor's family indicated its initial intent to proceed with Debtor's other bankruptcy case, Mr. Goldbach had to continue performing some services because he could not simply ignore this Court's order to show cause re dismissal and other remedies (dkt.12); (b) Mr. Goldbach declares that he did such work, in excess of $1,690; (c) it would have been inappropriate for Mr. Goldbach to have filed half-completed bankruptcy schedules and other documents (they would be misleading, and could disclose privileged communications and work product); (d) Debtor's multiple apparent representatives caused confusion; (e) there is no basis in the record to speculate that the petition was filed for improper purposes (a filing on the eve of foreclosure can be just as much evidence of good faith as bad faith: for example, in this Court's experience debtors frequently try in good faith to explore options to resolve their financial distress and only file a bankruptcy petition as a last resort); and (f) in this Court's experience, the fees are modest for the type of work involved.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Ruth Francois Jefferson Represented By Marc A Goldbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 40
Debtor(s):
Timothy Raymond Oliva Represented By
Rabin J Pournazarian
Joint Debtor(s):
Donelle Marie Oliva Represented By
Rabin J Pournazarian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 07/23/20
Docket 43
Tentative Ruling for 9/24/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (1) the status of Debtor's attempted loan modification, (2) whether, if Debtor is in a trial modification period, this hearing should be continued, (3) alternatively whether, if Debtor has been granted a loan modification, this claim objection is moot, or (4) alternatively whether, if the loan modification was denied, this Court should adopt its tentative ruling from 7/23/20 to deny the claim objection, and whether any such denial should be with or without leave to amend (i.e., with leave to file any new claim objection).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 7/23/20:
Overrule the claim objection for the reasons set forth in the Bank of New York Mellon opposition (dkt. 59). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
8:30 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tausha Suzette Petrotta Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 01/23/20, 3/26/20, 4/30/20, 6/25/20
Docket 23
Debtor(s):
Blanca Estela Rubalcava Represented By Lionel E Giron
Movant(s):
Blanca Estela Rubalcava Represented By Lionel E Giron Lionel E Giron Lionel E Giron Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20
Docket 49
Tentative Ruling for 9/24/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to discuss (i) the status of their negotiations, (ii) whether they have agreed upon a third party appraiser, and (iii) what procedures this Court should adopt for determination of the nature of Debtor's interest in the subject property. See stipulation (dkt.72) and order thereon (dkt.74).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information,
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see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (in addition to motion papers): Raeisi Group Inc.'s opposition papers (dkt. 52-59), Debtor's notice of hearing (dkt. 64), no reply is on file
Current issues
Debtor seeks an order under 11 U.S.C. 522(f) avoiding two judgment liens against Debtor’s residence, located at 1316 Irving Avenue, Glendale, California 91201 (the "Property"), recorded in favor of Raeisi Group, Inc. ("Lienholder"): (w) a judgment lien (the "Non-Debtor Lien") securing a
$470,145.31 judgment entered against Debtor’s non-filing spouse, Erik Hovsepian (the "Non-Filing Spouse") and (x) a judgment lien securing a
$57,910.31 judgment entered against Debtor (the "Debtor Lien").
Legal standard
Section 522(f) provides, in relevant part, that a debtor:
May avoid the fixing of a lien on an interest of the debtor in property to the extent that such lien impairs an exemption to which the debtor would have been entitled under subsection (b) of this section, if such lien is—
a judicial lien [11 U.S.C. 522(f)]
Section 522(f)(2) provides a formula for calculating the extent to which a lien impairs an exemption: add the lien, all other liens on the property, and the amount of the exemption that the debtor could claim if there were no liens on the property and then subtract from that amount the value of the debtor’s interest in the property in the absence of any liens. In re Meyer, 373 B.R. 84, 86 (9th Cir. BAP 2007); In re Pike, 243 B.R. 66, 71 (9th Cir. BAP 1999).
When multiple liens are involved, there is authority that the liens must be "subtracted in order of reverse priority." In re Hanger, 217 B.R. 592, 595 (9th Cir. BAP 1997), aff'd, 196 F.3d 1292 (9th Cir. 1999). See also In re Heaney, 453 B.R. 42, 48 (Bankr. E.D.N.Y. 2011) (same).
Procedural issues
Debtor did not comply with Local Bankruptcy Rule ("LBR") 4003-2(b) (1), which requires a separate notice and motion for each lien that is sought to be avoided. The tentative ruling is to excuse Debtor’s non-compliance because it does not appear to have prejudiced Lienholder, but Debtor’s
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counsel is cautioned that failure to comply with applicable rules in future may result in adverse consequences.
Alternatively, the tentative ruling is that Lienholder has waived and forfeited any assertion of prejudice because this issue was not raised in its’ opposition papers.
The Property is property of the estate
Debtor states that she purchased the Property with her then-husband, now estranged, in April 2008, and that title to the Property is in the name of Erik Hovsepian and Elin Khachatourian Family Trust. Dkt. 49, pdf. p. 5, para.
7. Debtor asserts a community property interest in the Property. Dkt. 15, p.12.
Although not raised by either party, the tentative ruling is that the Property is property of the estate, notwithstanding the form of title. See Cal. Fam. Code 760 (Under California law, all property acquired by a spouse during marriage is presumptively community property); Cal. Fam. Code 761(a) ("[u]nless the trust instrument . . . expressly provides otherwise, community property that is transferred in trust remains community property during the marriage . . . if the trust . . . is revocable "); 11 U.S.C. 541(a)
(1)&(2) (property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case," and "[a]ll interests of the debtor and the debtor’s spouse in community property as of the commencement of the case "); In re Brace, 9 Cal.5th 903 (Cal. Supreme
Ct. 7/23/2020); In re Cutter, 398 B.R. 6, 19 (9th Cir. BAP 2008) (citing 11
U.S.C. 541(a)(1) and (c)(2)) ("While assets transferred to a trust do not ordinarily become property of the bankruptcy estate of the trust’s trustee, powers that a debtor is a trustee of a trust may exercise for his or her own benefit become property of the estate" and "to the extent a debtor holds a beneficial interest in a trust, that beneficial interest becomes property of the estate, unless it is protected by a valid spendthrift provision").
Avoidability of the Non-Debtor Lien
Lienholder argues that Debtor cannot use section 522(f) to avoid the Non-Debtor Lien because the lien secures a judgment against Debtor’s Non- Filing Spouse who is not a debtor in bankruptcy nor a party to this motion.
Dkt. 52, p.2:19-23. Lienholder also argues that the Non-Debtor Lien is not avoidable because Debtor’s Non-Filing Spouse would be prohibited from avoiding the lien if he were to commence his own chapter 13 bankruptcy case because the debt is nondischargeable under 11 U.S.C. 523(a)(4). Id. p.
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9:18-10:13. In support of this argument, Lienholder relies on the non-binding case of Castle v. Parrish, 29 B.R. 869, 874 (Bankr. S.D. Ohio 1983). But Castle is inapplicable, because it involves the avoidability of a lien securing child support, which is a debt "of a kind that is specified in section 523(a)(5)," and which section 522(f)(1) unambiguously excepts from avoidance. See 11
U.S.C. 522(f)(1)(A) (. . . the debtor may avoid the fixing of a lien on an interest of the debtor in property to the extent that the lien impairs and exemption to which debtor would have been entitled under subsection (b), if such lien is – a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)") (emphasis added). Although Lienholder argues that its judgment against Debtor’s Non-Filing Spouse is nondischargeable under 11 U.S.C. 523(a)(4), Rule 7001(6) (Fed. R. Bankr. P.) would require the initiation of an adversary proceeding for any determination of nondischargeability in bankruptcy. See In re Kimmel, 367
B.R. 174, 180-81 (Bankr. N.D. Cal. 2007) (reviewing procedures for nondischargeability action against non-debtor spouse).
In addition, dischargeability is not at issue. That is an "in personam" concept, but Debtor seeks an "in rem" remedy: avoiding the Non-Debtor Lien on estate Property. Accordingly, the tentative ruling is that any issues regarding the dischargeability of Lienholder’s debts against the Non-Filing Spouse are not properly before this Court in this hearing.
The tentative ruling is also that on the issue of avoidability, Debtor can avoid the Non-Debtor Lien if Debtor can establish that it impairs her claimed homestead exemption. See, e.g., In re Obedian, 546 B.R. 409, 423-25 (Bankr. C.D. Cal. 2016) (concluding that debtor could avoid judicial lien against non-filing spouse because lien attached to community property interests as a debt incurred during marriage and, because the property was property of the estate, the lien impaired debtor’s exemption).
Valuation
Debtor asserts that to the extent the liens exceed the $66,761.28 equity in the Property after deducting senior liens and Debtor’s homestead exemption from Debtor’s alleged $935,000 fair market value, Lienholder’s liens are avoidable. Dkt. 4, p. 4. Conversely, Lienholder argues that the Property is actually worth $1,315,000, and therefore do not impair Debtor's homestead exemption in any amount. Dkt. 55.
The parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court
8:30 AM
ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20
Docket 39
Debtor(s):
Kenneth A Lindahl Represented By Carl Shaff II
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
Tentative Ruling for 9/24/20:
Deny. Appearances are not required.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Reasons for denial: This Court's prior tentative ruling directed Debtor to submit a supplemental declaration by 9/10/20 that (i) attached a copy of the appraisal she referenced in her motion and (ii) addressed whether Debtor's valuation was the replacement value, as determined by the price a retail merchant would charge, or some other valuation method. As of the preparation of this tentative ruling, no supplemental declaration is on file.
Therefore, the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Continue to 9/24/20 at 8:30 a.m., and set a deadline of 9/10/20 for Debtor to
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file and serve a declaration addressing the issues below. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues:
Missing copy of appraisal
Debtor states that she had her car appraised at CarMax on June 10, 2020, and that a copy of that appraisal is attached to the motion as Exhibit B. Dkt. 29, p.5, para. 5.
There are no exhibits attached to the motion.
Valuation method Under 11 U.S.C. 506(a):
If the debtor is an individual in a case under chapter 7 or 13, [the] value with respect to personal property securing an allowed claim shall be determined based on the replacement value of such property as of the date of the filing of the petition ... With respect to property acquired for personal, family, or household purposes, replacement value shall mean the price a retail merchant would charge for property of that kind considering the age and condition of the property at the time value is determined. [11 U.S.C. 506(a)(2) (emphasis added)].
Debtor states that her vehicle was appraised at $4,500. Id. Debtor does not specifically state whether that appraisal value was the replacement value, as determined by the price a retail merchant would charge, or some other valuation method. But based on Debtor's declaration it appears that she has used the trade-in value for the vehicle, which does not comply with the above-quoted statutory provisions.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jannie T. Murillo Represented By Chirnese L Liverpool
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
REVERSE MORTGAGE SOLUTIONS, INC.
vs DEBTOR
Docket 39
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
William Salvatore Weber Represented By
Eric Bensamochan
Movant(s):
REVERSE MORTGAGE Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 52
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 54).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Bianca Marie Aranda Represented By William G Cort
Movant(s):
PennyMac Loan Services, LLC Represented By Megan E Lees Robert P Zahradka
10:00 AM
Trustee(s):
Christina J Khil Josephine E Salmon
Kathy A Dockery (TR) Pro Se
10:00 AM
CALIBER HOME LOANS, INC.
vs DEBTOR
Docket 48
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Ramon Joel Dominguez Represented By Guy R Bayley
Movant(s):
Caliber Home Loans, Inc. Represented By Cassandra J Richey Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REVERSE MORTGAGE FUNDING LLC
vs DEBTOR
Docket 30
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
William Harris Treadway Represented By Sam Benevento
Movant(s):
Reverse Mortgage Funding LLC Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WAYNE C ROWELL, TRUSEE OF THE WAYNE C ROWELL REVOCABLE TRUST
vs DEBTOR
Docket 21
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 25).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Hideko Charlene Zuniga Represented By Brad Weil
Movant(s):
Wayne C Rowell, Trustee of the Represented By Julian K Bach
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 66
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 68).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Brenda Kay Turner Represented By Barry E Borowitz
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Josephine E Salmon
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAB WEST, LLC
vs DEBTOR
Docket 24
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Steven M. Martinez Represented By Tom A Moore
Joint Debtor(s):
Lorraine Martinez Represented By Tom A Moore
Movant(s):
Cab West, LLC Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SUN RICH DEVELOPMENT I, LLC
vs DEBTOR
Docket 10
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Sun Rich Development I, LLC Represented By David Brian Lally
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
TOYOTA MOTOR CREDIT CORPORATION
vs DEBTOR
Docket 28
Tentative Ruling for 9/29/20:
Appearances required.
This matter was continued at Movant's request to allow time for it to review its accounting. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
10:00 AM
appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 30).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Rene E Quintanilla Represented By Daniela P Romero
Joint Debtor(s):
Lidia D Sanchez Represented By Daniela P Romero
Movant(s):
Toyota Motor Credit Corporation Represented By
Austin P Nagel Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 31
Tentative Ruling for 9/29/20:
Appearances required.
This matter was continued to this date to allow time to determine the status of any loan modification negotiations with Debtor. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties
10:00 AM
who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/16/20 hearing, this Court stated that it would take up the issue of an adequate protection order at this continued hearing. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/16/20:
Continue this hearing to 8/24/20 at 10:00 a.m., in view of the three month forbearance agreement (see dkt. 35). Appearances are not required on 6/16/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
10:00 AM
resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bryan C Woods Pro Se
Joint Debtor(s):
Donna P Woods Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REVERSE MORTGAGE FUNDING, LLC
vs DEBTOR
Docket 34
Debtor(s):
Joyce Elaine Durden Represented By Thomas B Ure
Movant(s):
Reverse Mortgage Funding LLC Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
for Disposition of Proceeds, Including Payment of Contingency Attorneys Fees and Costs
Docket 49
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Cristina Magana Represented By
Peter L Nisson - SUSPENDED BK -
Trustee(s):
Sam S Leslie (TR) Represented By Carolyn A Dye
11:00 AM
Adv#: 2:20-01160 Merritt, an individual v. PECAS LLC, a Delaware Limited Liability
Docket 1
- NONE LISTED -
Debtor(s):
Lake Mathews Mineral Properties, Represented By
Michael Jay Berger Cassandra J Richey
Shirley Smith - SUSPENDED -
Defendant(s):
PECAS LLC, a Delaware Limited Pro Se
Chabad Temple Inc Pro Se
Plaintiff(s):
Paul Merritt, an individual Pro Se
Trustee(s):
Elissa Miller (TR) Represented By Franklin C Adams Juliet Y Oh
11:00 AM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
Docket 29
Please see the tentative ruling for the adversary status conference (Calendar No. 4, 9/29/20 at 11:00 a.m.).
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Represented By Michael F Chekian
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
fr. 07/30/19, 9/24/19, 12/17/19, 02/18/20, 3/3/20, 4/21/20
Docket 1
Tentative Ruling for 9/29/20:
Grant Defendant's motion to dismiss (adv. dkt. 29) for the reasons stated therein. Appearances are not required.
Proposed Order: Defendant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 4/21/20:
Appearances required, but pursuant to Judge Bason's COVID19 Procedures,
telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic
11:00 AM
Instructions").
This Court has reviewed the parties' joint status report (adv.dkt. 18) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (docket number 18).
Mediation
Is there is any reason why this Court should not order the non-settling parties (i.e. Plaintiff/Trustee and Defendant Salgado) to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 5/5/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 5/10/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 7/17/20 deadline. Discovery cutoff (for completion of discovery): 7/31/20.
Expert(s) - deadline for reports: 8/7/20.
Expert(s) - discovery cutoff (if different from above): 8/14/20. Dispositive motions to be heard no later than: 9/29/20 at 11:00 a.m. Joint Status Report: 9/14/20.
11:00 AM
Continued status conference: 9/29/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: 10/27/20.
Pretrial conference: 11/10/20 at 2:00 p.m.
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: 11/10/20 (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: 11/17/20 at 9:00 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Pro Se
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
11:00 AM
11:00 AM
Adv#: 2:19-01218 Vaatete v. Graff
fr. 9/24/19, 11/12/19, 12/17/19, 1/14/20, 02/18/20, 4/7/20, 6/30/20
Docket 1
Tentative Ruling for 9/29/20:
Continue as set forth below, in view of Plaintiff's status report (adv.dkt.39). Appearances are not required on 9/29/20.
Current issues
This Court has no issues to raise sua sponte.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv. dkt. 11).
Mediation [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 7/12/19. Joinder of parties/amendment of pleadings: N/A
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
11:00 AM
Joint Status Report: 1/12/21
Continued status conference: 1/26/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
Defendant(s):
Zeta Graff Represented By
Zachary D Schorr
Plaintiff(s):
Olivia Vaatete Represented By Scott D Dinsmore Brennan Mitch
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
11:00 AM
fr. 5/5/20, 6/30/20
Docket 172
Tentative Ruling for 9/29/20:
Appearances required.
On 7/2/20 this Court entered an order granting the motion of Pensco Trust Company ("Pensco") to compel arbitration to resolve Debtor's objection to its claim (dkt. 209). Pensco's status report (dkt. 270) states that (i) there has been no communication between Debtor and Pensco regarding arbitration and (ii) arbitration proceedings have not been instituted.
There is no tentative ruling, but Debtor should be prepared to address why this Court should not deny her objection to Pensco's proof of claim (dkt. 172) for lack of prosecution.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Zeta Graff Represented By
Michael F Chekian
11:00 AM
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 195
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Jennifer M Liu Pro Se
1:00 PM
Docket 193
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
Movant(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
Docket 1
Tentative Ruling for 9/29/20:
Continue as set forth below. Appearances are not required on 9/29/20.
Current issues
Jennifer M. Liu's application for payment of interim fees (dkt. 195), no opposition is on file
The tentative ruling is to grant the application and allow interim fees of
$13,650 and expenses of $360, for a total award of $14,010.
Law Offices of Michael J. Berger's application for payment of interim fees (dkt. 193), no opposition is on file
The tentative ruling is to grant the application and allow interim fees of
$25,971 and expenses of $601.75, for a total award of $26,572.75.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19, dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19, dkt. 16).
Plan/Disclosure Statement*: set for hearing 10/27/20 at 1:00 p.m. (dkt.189).
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
1:00 PM
Claim no Claimants
29 Andrew Batley Roman
33 Erica Lopez
35 Hector A. Meza
39 Derek Hughes
Joshua Paddock
Daniel McCarthy
103 Henry Mussenden
Docket 688
Please see the tentative ruling for the status conference (Calendar No. 6, 9/29/20 at 1:00 p.m.).
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
1:00 PM
#5.00 Hrg re: Omnibus Objection to Duplicate Proofs of Claim Claim No. Claimants
61 Angelina Diaz
9 David Jon Lundeen
43 Michael Mendez
40 Victor Sandoval
Docket 689
Please see the tentative ruling for the status conference (Calendar No. 6, 9/29/20 at 1:00 p.m.).
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Movant(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Craig G Margulies Craig G Margulies Monserrat Morales Monserrat Morales Monserrat Morales
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20, 4/21/20,
5/2/20, 7/28/20
Docket 1
Tentative Ruling for 9/29/20:
Continue as set forth below. Appearances are not required on 9/29/20.
Current issues
Debtor’s objection to claims 29, 33, 25, 39, 65, 66 & 103 (dkt. 688) and related notices (dkt. 690-696), no opposition is on file
The tentative ruling is to grant the claim objection for the reasons stated in the objection.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtor’s objection to claims 9, 40, 43, & 61 (dkt. 689) and related notices (dkt. 697-700), no opposition is on file
The tentative ruling is to grant the claim objection for the reasons stated in the objection.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/20/19. A Plan (dkt.562) was confirmed on 5/15/20 (dkt.630). A post-confirmation status conference presently is set for 11/20/20 at 1:00 p.m., with a brief status report due 10/27/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
1:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
Docket 131
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Movant(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
Docket 117
Please see the tentative ruling for the status conference (Calendar No. 10, 9/29/20 at 1:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Movant(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
Docket 133
Please see the tentative ruling for the Status Conference (Calendar No. 10, 9/29/20 at 1:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
Docket 6
Tentative Ruling for 9/29/20:
Appearances are not required.
Current issues
Order to show cause ("OSC") re dismissal with a bar, or conversion to chapter 7, or other remedies (dkt. 133); response of the United States Trustee ("UST") (dkt. 144); response by Debtor (dkt. 146) [and additional, untimely responses, dkt.154, 157]
The tentative ruling - for the reasons stated in the OSC, the UST's response, the Procedures Order (dkt.10, 22), and in this tentative ruling - is to convert this case to chapter 7 so that the chapter 7 trustee can explore whether to (i) sell the subject property for its highest and best price, presumably with an agreed carve-out for professional fees, (ii) sell/settle the bankruptcy estate's claims against U.S. Bank, if appropriate, (iii) abandon the estate's assets to Debtor, or (iv) take other appropriate action. Alternatively, the tentative ruling is to dismiss this case, and impose a bar under 11 U.S.C. 109(g)(1) for willful failure to appear in proper prosecution of this bankruptcy case.
This Court recognizes that Debtor and her family are in an awful situation: they face the likelihood of losing their rental property through foreclosure, after a series of failures in the State Courts, while also apparently facing medical calamities and other dire circumstances. This is tragic for Debtor, and similar circumstances all too familiar in bankruptcy cases.
But Debtor has not prosecuted this bankruptcy case in any way that would lead to a realistic, good faith use of the bankruptcy system. Even at this late stage, she continues to press highly unrealistic strategies.
Debtor suggests that she may seek to employ a broker "to see if the Subject Property can be sold and the proceeds used to fund a [chapter 11] Plan" (dkt.146, p.3:23-25) (emphasis added), which might provide an
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"increased [sic] payout to the unsecured creditors" (id., p.3:16-17) (emphasis added), who "mainly" include (apart from possibly underwater junior lienholders) "attorneys that worked on the state court matters over the past several years and creditors related to maintenance of the Debtor’s primary asset [the subject rental property]." Id., p.2:8-11. This outline of a chapter 11 plan is nothing but wishful thinking.
Selling property that is underwater will not generate any "proceeds" to "fund" a plan; and as the UST points out Debtor is losing a substantial amount of money every month, so there is no apparent source for any payment to unsecured creditors, let alone any "increased" payments.
True, Debtor hopes that, despite a string of losses in the State Courts, she might be able to pull a rabbit out of a hat by raising a new theory. But, first, Debtor cannot simply ignore the disputed lien meanwhile, and use the proceeds from selling the property to "fund" a chapter 11 plan. At best, any disputed proceeds would have to be held in a disputed claims reserve.
Second, on this record this Bankruptcy Court can only conclude that Debtor's hope of any recovery on her claims against the lienholder is a highly unlikely outcome. Debtor's claims are not a basis on which to "park" in bankruptcy, and gain the benefits of the automatic stay, despite ongoing and substantial financial losses.
Debtor's new theory, as this Bankruptcy Court understands it, is that the meets and bounds description in the deed of trust of senior lienholder
U.S. Bank was not simply negligently omitted or misstated but was fraudulently altered, and that this alleged alteration would void the lien. This new theory appears very unlikely to succeed for two reasons.
First, based on what has been described to this Court, the Superior Court's reasoning was that anything to do with the meets and bounds description was immaterial. The rest of the loan documents apparently made it clear what property the parties meant to encumber, and the funds were advanced and used by Debtor, so (the Superior Court apparently ruled) there is no cognizable harm or claim. See, e.g., MTC Fin. v. Cal. Dept. of Tax & Fee Admin., 41 Cal.App.5th 742, 747 (2019) ("To be sufficient the description must be such that the land can be identified or located on the ground by use of the same.") (citation and internal quotation marks omitted; emphasis added).
Second, assuming solely for the sake of discussion that Debtor's new theory might have persuaded the Superior Court to reach a different
1:00 PM
conclusion if that argument had been raised sooner, the problem remains that Debtor's new theory almost certainly will be precluded at this late stage. This Court takes judicial notice that Debtor's counsel admits Debtor's fear that the California Court of Appeal will bar Debtor from raising this new theory based on "collateral estoppel or res judicata," and will only accept new theories if they are based on "facts that have come to light after the [State Court's] order [sustaining the demurrer] was issued." See Shemtoub Decl. (included in dkt.147), p.4:1-10 (PDF p.13) (emphasis added).
This Court also takes judicial notice that Debtor's counsel admits that this was the reason to recommend proceeding in this Bankruptcy Court rather than before the California Courts. Id. See also Claim Obj. (dkt.139),
p.4:8-11. Although Debtor's counsel vehemently denies forum shopping, the tentative ruling is that this is the very definition of forum shopping.
To be clear, this Bankruptcy Court is not actually deciding any of the issues being litigated in State Court. To the contrary, as Debtor notes, this Court has already ruled that the Rooker-Feldman doctrine prevents this Bankruptcy Court from reviewing the State Court's rulings. The point is only that, for bankruptcy purposes, the preponderance of the evidence (indeed, the clear and convincing evidence) is that Debtor lacks "a reasonable likelihood of rehabilitation" and there is a "substantial" and "continuing" loss to or diminution of the estate (the statute requires only that the loss or diminution be one or the other - either substantial or continuing - and both are established in this case). 11 U.S.C. 1112(b)(4)(A) (emphasis added).
For all of these reasons, the tentative ruling is that dismissal or conversion is appropriate under 11 U.S.C. 1112. The tentative ruling is that conversion to chapter 7 is the most appropriate disposition, because a chapter 7 trustee can prosecute this case in the ways that Debtor has failed to do and shows no signs of being willing to do, and alternatively the chapter 7 trustee can abandon the assets of the estate and leave Debtor and all creditors to their remedies outside of bankruptcy.
Finally, the tentative ruling is that the history of this case establishes that Debtor has willfully failed to appear in proper prosecution of this case within the meaning of 11 U.S.C. 109(g)(1). Therefore, if this case were to be dismissed (rather than converted), it would be appropriate to impose a 180- day bar against being a debtor in any future bankruptcy case.
In sum, although this Court recognizes how awful it is for anyone to lose their assets, that does not justify a misuse of the bankruptcy system.
1:00 PM
Debtor cannot gain the benefits of the automatic stay while incurring substantial and continuing lossess without any reasonable likelihood of rehabilitation.
Supplemental tentative ruling regarding untimely responses to OSC:
The tentative ruling is to strike the untimely responses to the OSC filed by U.S. Bank (dkt.154) and alleged secured creditor Natasha Espinal (dkt.157). Alternatively, the tentative ruling is that those responses only reinforce this Court's tentative ruling set forth above.
U.S. Bank points out that, just like Debtor's claims, Ms. Espinal's claims are the subject of a pending action in State Court. Dkt.154, pp.2:24-3:2. That reinforces this Bankruptcy Court's conclusion that the parties' disputes are properly determined in State Court.
Ms. Espinal asserts in her conclusion that the "issue before the Court is a core issue and not beholden to the bar of Rooker Feldman." [Dkt.157, p.12:5-7] She offers no analysis or citation to authority, and her bare assertion is not persuasive.
U.S. Bank also reiterates:
Although the USB DoT lacks a legal description, it nevertheless contains the correct common street address and correct Assessor's Parcel No. ("APN") for the Subject Property. (RJN ¶ 1). [U.S. Bank Response to OSC (dkt.154), p.3:25-27 (citing RJN in Adv. No. 2:20- ap-01068-NB, dkt.5)]
Throughout this bankruptcy case, nobody has disputed these assertions. This Bankruptcy Court has also verified that the Deed of Trust includes, as part of the property description, an APN (5561-007-032) and a current property address of "9219 Robin Dr., Los Angeles, California 90069" (capitalization omitted). RJN (Adv. No. 2:20-ap-01068-NB, dkt.5) p.9 (Ex.A to RJN). The street address matches the one asserted by Ms. Espinal. See dkt.157, p.13:9-10.
Under the authority cited by Debtor and Ms. Espinal themselves, this appears to be more than sufficient. "To be sufficient the description must be such that the land can be identified or located on the ground by use of the same." MTC Fin. v. Cal. Dept. of Tax & Fee Admin., 41 Cal.App.5th 742, 747 (2019) (citation and internal quotation marks omitted; emphasis added).
Similarly, the California Evidence Code provides:
The party producing a writing as genuine which has been altered,
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or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration
or appearance thereof. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise. [Cal. Evid. Code § 1402 (quoted in Espinal Reply (dkt.157, p.8:8-14)) (emphasis added).]
The tentative ruling is that arguments by Debtor and Ms. Espinal are entirely without merit, and that even if they had some remote chance of success that would be an insufficient basis on which to "park" in bankruptcy while attempting to litigate their claims. The supplemental papers only reinforce the conclusion that this case must be converted to chapter 7 or dismissed with a 180-day bar.
Application to employ Joshua Barre and Westside Property Management, Inc. (dkt. 117, the "Management Application"), Order setting hearing (dkt. 135)
The tentative ruling is to deny the Management Application in view of the foregoing tentative ruling to convert this case to chapter 7 (or, alternatively, dismiss this case).
Application to employ Law Offices of W. Derek May (dkt. 143)
The tentative ruling is to deny this employment application in view of the foregoing tentative ruling to convert this case to chapter 7 (or, alternatively, dismiss this case).
Proposed orders: The UST is requested to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the proposed order on the OSC, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
1:00 PM
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: N/A.
Continued status conference: N/A.
*Warning: special procedures apply (see order setting initial status
conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
To Employ Law Office of David Agler As Special Tax Counsel
Docket 363
Please see the tentative ruling for the status conference (Calendar No. 12, 9/29/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
Movant(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20, 9/1/20
Docket 1
Tentative Ruling for 9/29/20:
Appearances are not required on 9/29/20.
Current issues
Application to employ Law Offices of David Agler as special tax counsel (dkt. 363, the "Application"), statement of disinterestedness (dkt. 365), no opposition is on file
The tentative ruling is to grant the application, subject to Judge Bason's standard employment terms, pursuant to 11 U.S.C. 327(a). This Court notes that the Application seeks employment under 11 U.S.C. 327(e), but subsection "(e)" applies by its terms only to an attorney that previously "has represented the debtor." Mr. Agler's declaration states that his firm has no prior connection with Debtor (dkt. 363, p.18 & 365, p.2, para. 6).
Nevertheless, there is authority that special counsel can be retained under subsection "(a)." See In re Fondiller, 15 B.R. 890, 892-93 (9th Cir. BAP 1981).
Notwithstanding the foregoing, if there are grounds to authorize employment under section 327(e), the tentative ruling is to direct Applicant to submit a supplemental declaration establishing such grounds no later than 2 days after the hearing date and reference that supplemental declaration in the proposed order.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
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Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: TBD (Debtor must use the forms required by Judge Bason, absent an order excusing the use of such forms) (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/6/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
SUN RICH DEVELOPMENT I, LLC
vs DEBTOR
Docket 10
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/7/20 hearing, Debtor requested that the hearing on this motion be continued for a possible sale of Debtor's assets. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 13). In addition, Debtor should be prepared to address the status of any proposed sale.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 13). In addition, Debtor should be prepared to address the issues raised in Movant's reply (dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
1:00 PM
Movant(s):
Sun Rich Development I, LLC Represented By David Brian Lally
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
Docket 15
Tentative Ruling for 9/29/20:
Appearances required by counsel for the jointly administered debtors, principal(s) of the debtors, and the Subchapter V Trustee.
Current issues
Combined status conferences
Eight cases are jointly administered: In re Tea Station Investment, Inc. (Case No. 2:20-bk-14175-NB) ("Investment"); In re Tea Station, Inc. (Case No. 2:20-bk-18039-NB) ("Station"); In re Tea Creations, Inc. (Case No. 2:20- bk-18041-NB) ("Creations"); In re Tea City, Inc. (Case No. 2:20-bk-18042-NB) ("City"); In re Tea Hut, Inc. (Case No. 2:20-bk-18043-NB) ("Hut"); In re Tea Station Operation, Inc. (Case No. 2:20-bk-18044-NB) ("Operation"); In re Tea Island, Inc. (Case No. 2:20-bk-18046) ("Island"); In re Tea Professor, Inc. (Case No. 2:20-bk-18047-NB) ("Professor"). For purposes of this tentative ruling, the newly filed debtors (i.e., all debtors except Investment) are collectively referred to as the "Affiliated Debtors." This status conference addresses all eight cases.
Motions of Baodi Zhou for relief from automatic stay or dismissal of the Investment case (dkt.49, 50, 59); Debtor's opposition (dkt.62), reply (dkt.68)
Deny at this time, in view of Debtors' status reports (dkt.78, 79), but continue the motions to be concurrent with the continued Status Conference date (see below), so as to re-assess at that time what progress has or has not been made in this case.
Motion of Sun Rich Development I, LLC ("SunRich") for relief from the automatic stay re unlawful detainer (dkt.10); Debtor's opposition (dkt.13); reply (dkt.14)
Continue to be concurrent with the continued Status Conference date (see below), provided that if Investment has not paid $7,563.58 for
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September by the time of this hearing, or has not paid another $7,563.58 for October by the time of the continued hearing, then SunRich may file a declaration of non-payment and lodge a proposed order terminating the automatic stay.
Amended application to employ Leslie Cohen Law PC (dkt. 72), no opposition is on file
There is no tentative ruling. Applicant should be prepared to address her apparent conflict of interest in representing both Investment and Operation in view of (i) Operation's pre-petition gift to Investment to fund Applicant's retainer (dkt. 41, p.2, para. 2) and (ii) commitment to pay Investment's post-petition fees (Id., p.2, para. 3). Why was this fee arrangement not disclosed in the amended application or the statement of disinterestedness for Operation? How will Investment's fees be paid going forward in view of Operation's bankruptcy filing?
Bar date for the Affiliated Debtors and joint plan deadline Pursuant to First Amended General Order 20-01 (available at
www.cacb.uscourts.gov under "Rules and Procedures"):
For chapter 11 cases filed under Subchapter V, all claims – except by governmental units – must be filed within 70 days after the date of the order for relief. Governmental units’ claims for chapter 11 cases filed under Subchapter V must be filed within 180 days after the date of the order for relief." [Id., p.2:4-7 (emphasis added)]
Similarly, 11 U.S.C. 1189(b) provides:
The debtor shall file a plan not later then 90 days after the order for relief under this chapter, except that the court may extend the period if the need for the extension is attributable to circumstances for which the debtor should not justly be held accountable. [Id. (emphasis added).]
If this Court adopts those time frames, the general claims bar date for the Affiliated Debtors would be 70 days from 9/1/20, which is 11/10/20, and the deadline to file the plan would be 90 days from 9/1/20, which is 11/30/20. The tentative ruling is to issue an order memorializing those dates and continue Investment's deadline to file a plan to 11/30/20. The parties are directed to address whether this Court should adopt any different dates.
Deadlines/dates. This case was filed on 5/4/20 and converted from
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chapter 7 to chapter 11 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with the Affiliated Debtors (dkt.64).
Bar date: (i) Investment 9/9/20 (dkt. 40; timely served, dkt. 43); Affiliated Debtors 11/10/20 (see above) (DO NOT SERVE notice yet - court will prepare orders for each of the Affiliated Debtors after the status conference).
Procedures order: dkt.18 (timely served, dkt.20) (also timely served in each jointly administered case).
Plan/Disclosure Statement*: file by 11/30/20 (see above) using the forms required by Judge Bason, or other forms if expressly authorized (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/27/20 at 1:00 p.m. (no written status report required). The tentative ruling is that, although the continued status conferences will apply to all Affiliated Debtors, only the lead case will appear on this Court's calendar.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 9/15/20:
Continue as set forth below. Appearances are not required on 9/15/20.
Current issues
Motions of Baodi Zhou for relief from automatic stay or dismissal (dkt.49, 50, 59); Debtor's opposition (dkt.62), no reply is on file
The tentative ruling is to deny Ms. Zhou's request for dismissal and deny any immediate relief from the automatic stay for the reasons stated in Debtor's opposition papers. But the tentative ruling is to continue the motions
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to be concurrent with the continued Status Conference date (see below), so as re-assess at that time what progress has or has not been made in this case, and whether Debtor and its affiliates are making appropriate use of their bankruptcy "breathing spell."
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with several affiliated debtors (dkt.64).
Bar date: 9/9/20 (dkt. 40; timely served, dkt. 43).
Procedures order: dkt.18 (timely served, dkt.20)
Plan/Disclosure Statement*: TBD.
Continued status conference: 9/29/20 at 1:00 p.m. to be concurrent with other matters (no written status report required).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
1:00 PM
fr. 9/15/20
Docket 49
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
BAODI ZHOU
vs DEBTOR
Docket 50
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
Docket 39
Please see the tentative ruling for the status conference (Calendar No. 25, 9/29/20 at 1:00 p.m.).
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
United States Trustee (LA) Represented By Dare Law
1:00 PM
VADIM KOGAN
vs DEBTOR
Docket 23
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 25, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (Calendar No. 25, 9/1/20 at 1:00 p.m.)
Tentative Ruling for 8/18/20:
Grant in part and deny in part as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes
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ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is no evidence of multiple bankruptcy cases, unauthorized transfers of interests in property, or other acts that would amount to a scheme to delay, hinder, or defraud the Movant within the meaning of the authorities cited above.
Movant's assertion that Debtors are involved in the cannabis business - while apparently accurate in general - has not been tied to this
specific property. Even if it were, Movant has not established how any activity at the property that might be illegal under federal law (with no evidence of any enforcement action by federal prosecutors) has any bearing on whether to grant in rem relief.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
Vadim Kogan Represented By Richard J Reynolds Joseph P Buchman
1:00 PM
fr. 9/1/20
Docket 43
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 25, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (Calendar No. 25, 9/1/20 at 1:00 p.m.)
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
1:00 PM
Docket 1
Tentative Ruling for 9/29/20:
Dismiss this case with a 180-day bar against being a debtor in any future bankruptcy case, for willful failure to appear in proper prosecution (11 U.S.C. 109(g)(1), 1112), and grant "in rem" relief from the automatic stay for 180 days, in favor of Vadim Kogan, for the reasons set forth below. Appearances required.
Analysis:
Dismissal with a 180-day bar is appropriate for the reasons stated (a) in the UST's motion to dismiss (dkt.39), (b) in tentative ruling for 9/1/20 (reproduced below), (c) in this Court's order to show cause ("OSC," dkt.43),
(d) in the response by the United States Trustee (dkt.62) to that OSC, and (e) at all prior hearings in this case, as well as (f) based on this Court's review of the Court's records and the filed documents (through dkt.80 - the latest filed document as of the preparation of this tentative ruling).
The tentative ruling is that dismissal will moot all other matters that are on for hearing today, except the request by Vadim Kogan, as part of a motion for relief from the automatic stay with respect to 4531 Glenalbyn Drive, Los Angeles, CA 90065, for "in rem" relief for a period of 180 days. See dkt.23,
p.5. Such requests typically survive dismissal. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). The tentative ruling is to grant such relief as follows, pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) ("in rem" relief not limited to 11 U.S.C. 362(d)(4)):
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within 180 days after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
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For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Proposed orders: The UST is directed to lodge a proposed order for dismissal, and Vadim Kogan is directed to lodge a proposed order on the motion for relief from the automatic stay. Both orders must be lodged via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required by counsel for Debtors.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Vadim Kogan's Motion For Relief From The Automatic Stay (dkt. 23, 29), adequate protection order (the "APO," dkt. 42)
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There is no tentative ruling, but, in connection with Mr. Kogan's request for additional relief, including "in rem" relief, the parties are directed to address the following issues. First, Debtors have presented an unauthenticated copy of purported insurance declarations. See dkt.51. But this Court ordered them to file a declaration authenticating his insurance coverage. APO (dkt.42) p.6, para.11.
Second, the parties are directed to address whether Debtors have provided adequate proof of alleged payments to the senior lienholder, and are otherwise in compliance with the APO. Third, the parties are directed to address whether the following issues establish cause for "in rem" relief.
Monthly Operating Reports ("MORs")
Debtors' June and July 2020 MORs (dkt.49, 50) make a mockery of the required disclosures. First, Debtors have completely ignored this Court's repeated directions - in the "Procedures" order issued at the inception of this case (dkt.6) and repeated in the adopted tentative ruling for 7/28/20 (dkt.43, Ex.A, pp.4-5) - that "For all reporting purposes – including Monthly Operating Reports (“MORs”), disclosure statements, etc. – Debtor[s] must disclose all income, expenses, assets, and liabilities of (a) affiliated businesses "
(Emphasis added.)
Second, even if Debtors' MORs were limited to their personal income and expenditures (which they are not) the MORs are not credible on their face. For example, they include almost no reported food expenditures.
Third, the MORs include vague entries such as "[c]ash" ($620 on 6/24/20, per dkt.49 at PDF p.6) or "[a]djustment" ($500 on 6/29/20, per id.). Such vague entries are tantamount to hidden transactions.
Fourth, the MORs are mostly blank in places where they should not be, such as disclosures of taxes owed and paid (e.g., dkt.49 at PDF p.15) and insurance coverage for vehicles (e.g., dkt.49 at PDF p.17). The MORs offer no explanation.
SOFA
Amended Bankruptcy Schedule I (dkt.48); and lack of amended
At one place in this Court's Order to Show Cause ("OSC," dkt.43, Ex.A,
p.3, para."(1)(c)") this Court listed one example of Debtors' inadequate financial disclosure: their Bankruptcy Schedule I listed income but no income taxes. That one example was only that: a single example. The same OSC
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refers to the "same problems" previously noted (id.), which include, as another example, that Debtors' SOFA lists $0 in income from any source for the past several years, which appears on its face not to be credible. See dkt.43, Ex.A, p.4, para."(1)(b)."
Despite owning a complex series of multi-million dollar businesses (see dkt.46, last page), Debtors' amended Bankruptcy Schedule I (dkt.48, at PDF pp.9-10) lists only $7,666/mo. of salary for Mr. Sergio Tellez, much reduced from his prior reported income. There is still no line item specifically disclosing any income taxes on that salary - instead there is a lump sum
$2,300 described as "30% of gross [income] put aside for taxes, medicare, SSA." Id.
In addition, Ms. Roseanna Tellez is listed as having $0 income despite being described as an "Administrative Assistant" at Spliffin Group Inc. for the last 6 months; Debtors purport to have $0 income from any property or business (dkt.48 at PDF p.10, line 8a); and they claim $0 income from any interest or dividends (id., line 8b). In addition, Debtors have not filed any amended SOFA.
Order to show cause ("OSC," dkt. 43)
The tentative ruling is that, although Debtors nominally have filed most of the documents required by the OSC (see dkt. 46-50), their financial disclosures are a complete sham, for the reasons set forth above. The tentative ruling is that Debtors have willfully failed to appear in proper prosecution of this case, within the meaning of 11 U.S.C. 109(g)(1), and have misrepresented facts, unfairly manipulated the Bankruptcy Code, filed their bankruptcy petition for improper and inequitable purposes of delaying and harassing creditors; and have engaged in egregious behavior as described above.
The tentative ruling is to dismiss this case with a permanent bar against being debtors in any future bankruptcy case, unless this Court for cause shown were to lift that bar after notice to all parties in interest in this case and a hearing. In addition, the tentative ruling is to include a concurrent bar under 11 U.S.C. 109(g)(1) (for the first 180-days of the permanent bar).
See 11 U.S.C. §§ 105(a), 349(a), 1112(b); In re Glover, 537 Fed.Appx. 741 (9th Cir. 2013) (affirming dismissal with a five-year bar to refiling under 11
U.S.C. 105(a)); In re Leavitt, 171 F.3d 1219 (9th Cir. 1999) (affirming dismissal with prejudice based on finding of bad faith, considering whether debtor misrepresented facts, unfairly manipulated Code, or otherwise filed his
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petition or plan in inequitable manner; debtor’s history of filings and dismissals; whether the debtor intended to defeat state court litigation; and whether egregious behavior is present).
Alternative grounds for dismissal with bar
The record before this Court is that much of Debtors' business involves cannabis, which is illegal under federal law. Although that fact does not necessarily create a bar that would prevent Debtors from reorganizing their finances at all in bankruptcy, at the very least Debtors would have had to pay special attention to careful disclosures of their finances and operations, and show what steps they are taking toward coming into compliance with nonbankruptcy laws, or divesting themselves of non-compliant businesses, or taking other steps to make appropriate use of the bankruptcy system. See, e.g., 28 U.S.C. 959(b); In re Burton, 610 B.R. 633 (9th Cir. BAP 2020); In re
Olson, 2018 WL 989263 (9th Cir. BAP 2/5/2018). But Debtors have done none of these things, and as set forth above they have flouted the required financial disclosures.
In sum, Debtors' involvement in businesses that are illegal under federal law, and their lack of care in dealing with the associated legal and financial issues, are additional reasons to impose the above bars against being debtors in any future bankruptcy case.
Starting date for bar
The tentative ruling is that the bars described above should commence from the time when this tentative ruling is first posted (8/31/20 just prior to 9:15am).
Notice
This Court notes that Debtors' counsel did not comply with this Court's direction to serve the OSC on all parties in interest. See OSC (dkt.43), p.4, para.4. Nevertheless, the tentative ruling is that all parties in interest have received adequate notice pursuant to this Court's Procedures order, which was served on all parties in interest. See dkt.6, 16.
Deadlines/dates. This case was filed on 6/23/20.
Bar date: 10/29/20 (dkt. 30; timely served dkt.47).
Procedures order: dkt.6 (timely served, dkt.16)
Plan/Disclosure Statement*: N/A
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Continued status conference: N/A
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED (see dkt.43, Ex.A, for tentative rulings through 8/18/20)]
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
1:00 PM
Adv#: 2:20-01172 Tellez et al v. FCI LENDER SERVICES, INC. et al
May Be Granted fr. 9/15/20
Docket 8
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 25, 9/29/20 at 1:00 p.m.).
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Defendant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds Joseph P Buchman
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Movant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds
1:00 PM
Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds Joseph P Buchman
Plaintiff(s):
Sergio Tellez Represented By
Anthony P Cara
Roseanna Tellez Represented By Anthony P Cara
1:00 PM
Docket 96
Please see the tentative ruling for the status conference (Calendar No. 28, 9/29/20 at 1:00 p.m.).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 9/29/20:
Appearances required by counsel for the debtor.
Current issues
Debtor's Disclosure Statement (dkt. 83) and Plan (dkt. 82), PHH Mortgage Corporation’s limited objection (dkt. 91), Debtor's amended Disclosure Statement (dkt. 96) and amended Plan (dkt. 95, "AmPl"), proof of service of solicitation package (dkt. 103), ballot summary (dkt. 104), no opposition is on file
As a preliminary matter, even though there is no opposition on file, this Bankruptcy Court has an independent obligation to review the Plan and Disclosure Statement for compliance with 11 U.S.C. 1129. Based on that review, the tentative ruling is to approve the Disclosure Statement on a final basis and confirm the Plan.
The starting point is Debtor's ballot summary (dkt. 104). Debtor has one consenting impaired class (Class 2A), and two classes that did not vote (Classes 2B and 4A), and Debtor requests "cramdown" (confirmation with fewer than all classes accepting, per 11 U.S.C. 1129(b)). One of the cramdown requirements is the "absolute priority rule" of section 1129(b)(2)(B) (ii), which essentially provides that Debtor cannot receive or retain any property - e.g., Debtor's rental property - "on account of" her prepetition interest in that property. The corollary is that Debtor can receive or retain property on account of "new value," and, as stated in the posted "Procedures of Judge Bason" (available at www.cacb.uscourts.gov) (the "Procedures"):
new value must be (among other things) "reasonably equivalent to the value or interest received" (In re Bonner Mall P'ship, 2 F.3d 899, 908 (9th Cir. 1993) (citations omitted)) but by definition $0 is "reasonably equivalent" to whatever residual value exists in fully
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encumbered property (which is what debtors often retain).
The tentative ruling is that, because Debtor's rental property appears to be fully encumbered under the Plan, the "reasonably equivalent" element of the new value test is satisfied in this case. The Procedures go on to state:
[In addition,] new value must be "necessary" and "substantial" (id.), which requires whatever cash is "necessary" to the success of the proposed reorganization, as opposed to a "token" cash infusion. In re Snyder, 967 F.2d 1126, 1131-32 (7th Cir. 1992) (cited in Bonner Mall, 2 F.3d at 908). When a debtor is devoting all or almost all disposable income to the plan then it may be "necessary" for feasibility (§ 1129(a)(11)) to have a cash infusion to cover the type of unanticipated emergency expenses that typically arise, and Judge Bason has accepted this as "substantial" new value even if it does not increase the dividend to unsecured creditors. See also
In re Ambanc La Mesa L.P., 115 F.3d 650, 656-657 (9th Cir. 1997) (not deciding among various ways to measure if contribution is "substantial," but holding that $32,000 contribution, less than 0.5% of unsecured debt, was de minimus as a matter of law).
The tentative ruling is that, for analogous reasons, Debtor's Plan satisifes the new value requirement. First, part of the funding for Debtor's Plan is "new" in that it is not subject to the absolute priority rule: although future earnings do not count as "new value," that is different from Debtor's cash in the bank accumulated from postpetition earnings, which are not counted for purposes of the absolute priority rule. See 11 U.S.C. 1129(b)(2) (B)(ii) (exception providing that individual debtor "may retain property included in the estate under section 1115 ...."). Despite Debtor's right to "retain" such property under section 1129(b)(2)(B)(ii), she proposes to use such cash to make $9,325.00 in payments on the Effective Date. See Disclosure Statement (dkt.96), Ex.C (lines 1 & 11a).
Second, the tentative ruling is that this cash infusion is "necessary" because otherwise there are insufficient funds to make the payments required on the Effective Date under the Bankruptcy Code. See 11 U.S.C. 1129(a)(9) (A) &(a)(12).
Third, the tentative ruling is that the $9,325 is "substantial" for two alternative reasons. For one thing, Debtor's payment is approximately 4.4% of unsecured claims ($9,325 / $212,238.88 (from dkt.95, Ex.A, Class 4A) = 4.39%). Although that percentage is not huge, it is meaningful, and not de
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minimus as a matter of law. Cf. Ambanc La Mesa L.P., 115 F.3d 650, 656-657. Alternatively, the tentative ruling is that comparing the dollar amount of new value to general unsecured claims is not the only way to
measure what is "substantial," and $9,325 is very substantial in comparison to
(a) Debtor's modest earnings despite working two jobs, (b) Debtor's very modest budget, including living in a rental apartment for only $1,000 per month (while reserving $300 per month for "miscellaneous" contingencies), and (c) Debtor's modest retention of property (she is not proposing to retain a mansion, for example). To illustrate the last point, consider a hypothetical situation in which a debtor proposes to retain property worth $10,000 and contributes $10,000 in new value. It is hard to conceive how that could be a violation of the absolute priority rule, even if $10,000 were some tiny fraction of creditors' claims.
For all of these reasons the tentative ruling is that Debtor's proposed Plan satisfied the absolute priority rule. In addition, based on this Court's review of Debtor's proposed budget and monthly operating reports, the tentative ruling is that her Plan meets the "feasibility" requirements of 11
U.S.C. 1129(a)(11). Finally, the tentative ruling is that Debtor's Plan meets meets the "fair and equitable" requirements (11 U.S.C. 1129(b)), the "good faith" requirement (11 U.S.C. 1129(a)(3)), and all the other requirements for confirmation.
Proposed orders: Debtor is directed to lodge two proposed orders via LOU within 7 days after the hearing date: (i) an order approving the Disclosure Statement on a final basis, and (ii) an order confirming the Plan and setting a post-confirmation status conference on the date set forth below, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. In addition, the confirmation order should include the langauge required by the local rules regarding post-confirmation status reports and the effect of any future conversion. See LBR 3020-1(b), 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
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Plan/Disclosure Statement*: see above
Post-Confirmation status conference: 1/12/21 at 1:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Debtor's disclosure statement (dkt. 83) and plan (dkt. 82), PHH Mortgage Corporation’s limited objection (dkt. 91)
The tentative ruling is that if Debtor can satisfactorily address the issues set forth below, this Court will set a deadline of 8/7/20 for Debtor to file a further amended Plan and amended D/S to correct these issues and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the D/S and confirmation of the Plan for the same time as
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the continued status conference (see below). The tentative ruling is also to sustain PHH Mortgage's limited objection and required Debtor to attach the parties' plan treatment stipulation to the plan and incorporate its provisions by reference.
Debtor’s projected income is inconsistent with Debtor’s actual monthly income
Debtor's projected personal income from employment is $4,314.46 (dkt. 83, Ex. 1), but Debtor's June Monthly Operating Report ("MOR") only reflects $2,824.16 in net monthly income from Vons (dkt. 92, p.1, line 4). Debtor's Amended Schedule I lists income from a second job at "City of Pomona" which provided Debtor with an additional $1,750.99 in monthly income (dkt. 28, p.5, line 8h). Debtor should be prepared to address whether she is still receiving income from the City of Pomona and what impact any loss in income from that source has on Debtor's plan projections and/or the feasibility of the Plan.
Overly inflated projected expenses
Debtor's projected monthly expenses includes a line item for $500 for "Cable/Internet" (dkt. 83, Ex.1), which appears to be excessive and is significantly higher than the $200 figure this Court authorized in Debtor's Budget Motion (dkt. 57, p. 7). Debtor should be prepared to address why this expense is projected to be so much higher and whether it is appropriate for her to spend that much on cable and internet each month when that money could be used to increase distributions to creditors.
Outstanding UST fees
Debtor’s June MOR reflects that UST fees for Q2 are outstanding in the amount of $325 (dkt. 92, p.11). Debtor is cautioned that failure to pay these fees by the payment deadline may result in adverse consequences.
Deadlines/dates. This case was filed on 2/26/20.
Bar date: 6/3/20 (dkt. 30; timely served, dkt. 35)
Procedures order: dkt. 5 (not timely served, but eventually served which gives notice of matters therein, dkt. 34)
Plan/Disclosure Statement*: see above
Continued status conference: 9/29/20 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
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Docket 1
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Trustee(s):
Wesley H Avery (TR) Pro Se
1:00 PM
9/1/20
Docket 6
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
4/22/19, 5/14/19, 6/11/19, 7/30/19, 9/24/19, 10/15/19,
11/12/19, 12/17/19, 2/4/20, 3/3/20, 03/31/20
Docket 1
Debtor(s):
Koi Design LLC Represented By Susan K Seflin
Jessica L Bagdanov
1:00 PM
fr. 9/15/20
Docket 280
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar no. 34, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 2, 9/15/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20, 8/18/20, 9/1/20, 9/15/20
Docket 247
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar no. 34, 9/29/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20, 9/1/20, 9/15/20
Docket 49
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272), Order denying plan hearing request without prejudice (dkt. 304)
As of the preparation of this tentative ruling, the docket does not appear to reflect that Debtor has resolved the issues set forth in this Court's 9/21/20 order (dkt. 304, p.3:1-12). Accordingly, the tentative ruling is to continue Debtor's Plan Hearing Request to be concurrent with the continued Status Conference set forth below.
SubChapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), Michael Tremblay's response (dkt. 291), Interim Turnover Order (dkt. 300)
There is no tentative ruling. This Court's order (dkt.300, p.2:16-19) set a deadline of 9/25/20 at noon for the parties to file any declarations regarding whether Debtor and her parents have complied with the Interim Turnover Order. As of the preparation of this tenative ruling, that deadline has not yet expired, so this Court will review any declarations prior to the hearing and review the issues with the parties at the hearing.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
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Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: see above (& dkt.270)
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208 (filed 5/19/20) and dkt.303 (filed 9/21/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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fr. 7/14/20, 8/4/20, 9/15/20
Docket 172
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 37, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 14, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 8/4/20 at 1:00 p.m.).
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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fr. 6/30/20, 8/4/20, 9/15/20
Docket 159
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 37, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 14, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/4/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 8/4/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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4/21/20, 6/30/20, 7/28/20, 8/4/20, 9/15/20
Docket 42
Note for 9/29/20:
This Court anticipates issuing a written Memorandum Decision prior to the hearing.
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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fr. 9/15/20
Docket 67
Note for 9/29/20:
This Court anticipates issuing a written Memorandum Decision prior to the hearing.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 60
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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YUNUEN CAMPOS
vs DEBTOR
Docket 22
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
Yunuen Campos Represented By Lauren A Dean
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fr. 8/18/20, 9/15/20
Docket 51
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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Docket 1
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103)
The tentative ruling is to grant the Budget motion on a further interim basis (except as modified in section 1(b) below) and set a further continued hearing concurrent with the status conference (see below).
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to continue to pay Ms.
Howerton monthly compensation of $6,000, on an interim basis, and set a further continued hearing concurrent with the status conference (see below) pending additional evidence from Debtor’s accountant.
Motion to assume and enforce settlement agreement (dkt. 67, the "Assumption Motion"), supporting declarations & request for judicial notice (dkt. 68, 69, 70) Ms. Campos' opposition (dkt. 89, 91) & evidentiary objections (dkt. 90), Debtor's response to evidentiary objections (dkt. 104) & reply (dkt. 105), Ms. Campos’ evidentiary objections (dkt. 106)
This Court anticipates issuing its memorandum decision in advance of the hearing adopting this Court's tentative ruling for 9/15/20 (posted below) and expanding this Court's analysis in response to the arguments set forth on the record at that hearing.
Yunuen Campos' motion for relief from the automatic stay (the "R/S
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Motion," dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56), Ms. Campos' supplemental briefing (dkt. 66, 82), Debtor's supplemental briefing (dkt. 71, 72), scheduling order (dkt. 88), Ms. Campos' second supplemental reply (dkt. 102), Debtor's second supplemental opposition (dkt. 114)
Pre-petition accounts receivable
In view of this Court's forthcoming memorandum decision on the Assumption Motion, the tentative ruling is to authorize Ms. Campos to deposit any pre-petition accounts receivable checks currently in her possession, to be credited against any amounts Debtor must pay to cure and assume the mediation term sheet, upon the entry of a final non-appealable order approving the Assumption Motion. See dkt. 114, p.2:19-25.
Post-petition accounts receivable
The tentative ruling is that Ms. Campos has the burden to establish that she has a valid perfected interest in post-petition accounts receivable and she has not satisfied that burden. This Court does not find Ms. Campos' reliance on In re Advanced Biomedical, Inc., 547 B.R. 337 (2016), aff'd 2016 WL 7188651 (9th Cir. BAP, Dec. 2, 2016) to be particularly helpful because that case only addresses pre-petition accounts receivable and the trial court did not need to address whether its analysis would be the same for any post- petition accounts receivable (such as, for example, whether, 11 U.S.C. 552 cuts off a pre-petition assignment order) because the value of the property securing the judgment creditor's lien exceeded the amount of the debt.
The tentative ruling is further that the underlying policies and principles of the Bankruptcy Court do not support Ms. Campos' reading of section
708.510 (Cal. Code Civ. Proc.) and the combination of the Supremacy Clause of the Constitution (Article VI, Clause 2), and 11 U.S.C. 362, 541, 552 et cetera appear to support the conclusion that an individual chapter 11 Debtor's post-petition earnings belong to the estate, notwithstanding the existence of any pre-petition assignment order(s). Therefore, the tentative ruling is that Ms. Campos is not entitled to any post-petition accounts receivable.
Proposed orders: Debtor is directed to lodge proposed orders on each of the following motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the proposed order on the R/S Motion, thereby incorporating it as this Court's final ruling, subject
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to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/27/20 at 1:00 p.m. Brief written status report due 10/13/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Proposed orders: Debtor is directed to lodge proposed orders on each of the following motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the proposed order on the Assumption Motion, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57),
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Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103)
The tentative ruling is to grant the Budget motion on a further interim basis (except as modified in section 1(b) below) and set a further continued hearing concurrent with the status conference (see below).
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to pay Ms. Howerton monthly compensation of $6,000, retroactive to July 2020, on an interim basis, and set a further continued hearing concurrent with the status conference (see below) pending additional evidence from Debtor’s accountant.
Motion to assume and enforce settlement agreement (dkt. 67, the "Assumption Motion"), supporting declarations & request for judicial notice (dkt. 68, 69, 70) Ms. Campos' opposition (dkt. 89, 91) & evidentiary objections (dkt. 90), Debtor's response to evidentiary objections (dkt. 104) & reply (dkt. 105), Ms. Campos’ evidentiary objections (dkt. 106)
The tentative ruling is conditionally to grant the Assumption Motion in part, without any evidentiary hearing, for the following reasons. (i) This Bankruptcy Court has "arising under" jurisdiction. (ii) The mediation term sheet lacked agreement on an essential term to make it noncontingent - the dollar amount and other terms to be offered by Ms. Campos to settle with a third party - and Debtor has not established that this contingency can be eliminated by any judicial determination of a dollar amount and other terms that Ms. Campos allegedly "should" have offered to comport with the duty of good faith and fair dealing. (iii) Nevertheless, as of the date of the bankruptcy petition the conditional agreement embodied in the mediation term sheet still existed; and if Ms. Campos is not required to pay anything more than her highest offer to settle the Fuller matters then, to that extent, Debtor's theory of good faith and fair dealing can apply, such that she could not deny that the condition is satisfied. Accordingly, if Debtor is willing to absorb the cost of settling the Fuller matters above what Ms. Campos previously agreed to pay, then the mediation term sheet is enforceable - otherwise not.
Jurisdiction
The parties dispute whether this Bankruptcy Court has jurisdiction.
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See 28 U.S.C. 1334. In addition, this Court has an independent duty to consider its own jurisdiction. In re AWTR Liquidation Inc., 547 B.R. 831, 833 (2016).
Ms. Campos argues that this Court lacks jurisdiction under Kokkonen
v. Guardian Life Ins. Co. of Am., 511 U.S. 375 (1994). Ms. Campos cites a decision in which a Bankruptcy Court held that, under Kokkonen, it lacked post-dismissal jurisdiction over a settlement allegedly agreed to during the bankruptcy case. In re Hanks, 182 B.R. 930 (Bankr. ND Ga. 1995).
One of Debtor's arguments is that Kokkonen includes an exception when the federal court's dismissal order retains jurisdiction. It is true that this Bankruptcy Court's dismissal order included language retaining jurisdiction.
On the one hand, the tentative ruling is that this language would not be broad enough to adjudicate a run-of-the-mill contract dispute (if that were all that is at issue).
The dismissal order provides that this Court "retains jurisdiction on all issues involving sanctions [and other irrelevant grounds] ... and to any additional extent provided by law." Dismissal Order (Ex.2 to Reply, dkt.105, at PDF pp.15-17) (emphasis added). The problem for Debtor is that, under Kokkonen, the "additional extent provided by law" does not include ordinary post-dismissal disputes over alleged settlements.
On the other hand, the tentative ruling is that Debtor's alternative argument is correct: the mediation term sheet, just like any other purported contract sought to be assumed, is subject to this Bankruptcy Court's jurisdiction. See dkt.105, p.7:5-12. Any ability to assume the contract arises under the Bankruptcy Code (11 U.S.C. 365), and an essential element of assumption is the determination whether an assumable contract exists. In other words, this is not just a run-of-the-mill contract dispute: it is part and parcel of issues that arise under section 365.
Any contrary ruling would not make sense. Motions to assume executory contracts and unexpired leases could not be litigated at all if Bankruptcy Courts lacked jurisdiction to address the inevitable subsidiary issues: everything from whether a contract was formed to whether it was terminated prepetition, who breached it, what damages have been incurred, whether those damages amount to penalties that need not be cured, etc., etc. See generally AWTR, 547 B.R. 831, 833-37 (discussing "arising under" jurisdiction and authority, and Bankruptcy Courts' ability to determine issues necessarily addressed in determining issues arising under the Bankruptcy
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Code).
For these reasons, the tentative ruling is that this Bankruptcy Court has subject matter jurisdiction.
The mediation term sheet lacked agreement on an essential term to make it noncontingent - the dollar amount to be paid by Ms. Campos to settle with a third party
Debtor argues that the mediation term sheet contains all of the essential terms of the parties’ agreement, is signed by both parties, and was intended to be a binding (albeit conditional) agreement. Dkt. 67,
pp.14:12-17:9. The tentative ruling is that Debtor has established prima facie evidence of all of those things, but that as long as the contingency exists the agreement cannot be enforced.
Paragraph 10 of the mediation term sheet (id., Ex.1, at PDF p.37) states in relevant part that "[t]he settlement is contingent upon Campos’ negotiating a settlement with Bertram Fuller ...." (Emphasis added.) Ms. Campos argues that this is a condition precedent that has not been satisfied, which renders the mediation term sheet unenforceable. Dkt. 89, p.14:9-18. Debtor counters that, regardless whether paragraph 10 is a condition precedent or (as Debtor argues) a condition subsequent, Ms. Campos failed to use good faith to fulfill the contingency. Dkt. 105, pp.2:6-6:16.
The parties devote considerable time and effort to addressing whether or not Ms. Campos attempted to settle in good faith. The tentative ruling is that this is not a justiciable question.
Debtor has not cited any legal authority that this Bankruptcy Court can and should determine whether a party to a settlement agreement, which is itself conditioned on settling with a third party, acted in good faith in deciding how many dollars to offer that third party and any other settlement terms. Nor is this Bankruptcy Court aware of such authority.
To the contrary, paragraph 10 appears to be an agreement to agree, which is generally unenforceable. The fact that the issue reserved for future agreement was the terms of a settlement with a third party only makes matters worse.
Under Debtor's theory, he and Ms. Campos had an agreement that was contingent on Ms. Campos' negotiation of a future agreement with a third party in an unspecified dollar amount, to be paid over an unspecified period of time, with unspecified other terms and conditions. Without having set forth in
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the mediation term sheet the range of terms that Ms. Campos could agree to, Debtor now asks this Bankruptcy Court to determine what range he and Ms. Campos alleged would have agreed to, had they finished negotiating every term of the mediation term sheet, under the implied covenant of good faith and fair dealing.
The tentative ruling is that this is the very definition of an agreement to agree. Such amorphous agreements are unenforceable - at least, until the contingency is removed. See, e.g., City of L.A. v. Superior Court of L.A. Cnty., 51 Cal.2d 423, 433 (1959) ("The general rule is that if an ‘essential element’ of a promise is reserved for future agreement of both parties, the promise gives rise to no legal obligation until such future agreement is made") (citation omitted).
Alternatively, even if paragraph 10 of the mediation term sheet were not an agreement to agree, the same principles should apply. Just as agreements to agree are too amorphous to be enforceable, there is no yardstick by which this Bankruptcy Court can determine whether Ms. Campos did or did not act in good faith by not offering a higher dollar amount, or sooner payment, or other terms.
In sum, Debtor has not established that the mediation term sheet is enforceable, as long as the contingency in paragraph 10 continues to exist. But that last clause is important because Debtor apparently has settled part of the Fuller matters, and has an option to settle the rest (dkt. 67, p.22:19-26).
If the contingency is removed then the mediation term sheet becomes enforceable
As of the date of the bankruptcy petition the conditional agreement embodied in the mediation term sheet still existed. Therefore, unlike a situation in which a contract has terminated prepetition, there is something to be assumed.
True, as Ms. Campos points out, neither Debtor nor she performed the other terms of the mediation term sheet, such as Debtors obligation to make monthly payments. But that is the whole point of section 365: debtors in bankruptcy can cure defaults (even many defaults that could not be cured outside of bankruptcy).
As noted above, "[t]he general rule is that if an ‘essential element’ of a promise is reserved for future agreement of both parties, the promise gives rise to no legal obligation until such future agreement is made." City of L.A.,
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51 Cal.2d 423, 433 (1959) (emphasis added). Therefore, for example, if Ms. Campos were to have reached a settlement of the Fuller matters then, at that moment, the mediation term sheet would have become enforceable.
But the equivalent of that outcome can still happen. Consider what would happen if Debt has simply settled the Fuller matters (rather than purchasing the judgments/claims). In that event, the contingency would have become moot, thereby eliminating Ms. Campos' objection to the enforceability of the mediation term sheet.
The tentative ruling is that Debtor need not go that far. There is evidence that Ms. Campos offered $60,000 to settle the Fuller matters (see dkt. 89, p.8) That changes the amorphous state of affairs that existed when the parties signed the mediation term sheet. The tentative ruling is that any refusal by Ms. Campos now to apply that same $60,000 that she offered before to settle the Fuller matters would be a violation of the covenant of good faith and fair dealing. In that situation, the tentative ruling is that Ms. Campos has not overcome Debtor's arguments that the mediation term sheet will be a curable, assumable, enforceable contract.
In other words, the tentative ruling is that if Debtor is willing to absorb the cost of settling the Fuller matters above the $60,000 that Ms. Campos previously agreed to pay, then Ms. Campos has not adequately rebutted Debtor's arguments in favor of granting the Assumption Motion. But, if Debtor is unwilling to absorb that cost, then the parties are left with an agreement to agree, which is unenforceable.
Conclusion as to the Assumption Motion
There is no precedent of which this Bankruptcy Court is aware for holding a trial to assess Ms. Campos' "good faith" in exploring settlement of the Fuller matters. Moreover, as a practical matter, doing so would be highly impractical.
Presumably this Court not only would have to take evidence regarding the underlying merits of Ms. Campos' disputes with Bertram Fuller, but also would have to take evidence on the "meta-issue" of whether, based on Ms.
Campos' subjective beliefs as to those merits, she did or did not make or receive settlement offers in "good faith." More precisely, this Court would have to determine whether an offer of $X over Y months with Z contingencies was too little, but $Z' over X' months with Y' contingencies would be enough to constitute "good faith." The process just described would include layers of
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expensive litigation and uncertainty.
The tentative ruling is that such litigation over Ms. Campos' good faith is not legally warranted, not practical, and not necessary. Rather, applying California precedent cited above regarding agreements to agree, Debtor can either hold Ms. Campos to her highest and best offer and thereby remove the contingency in paragraph 10, or Debtor can elect not to do so. In the latter event, the parties will be left with an unenforceable agreement (and they can continue litigating as before, or Debtor can explore other options).
Yunuen Campos' motion for relief from the automatic stay (the "R/S Motion," dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56), Ms. Campos' supplemental briefing (dkt. 66, 82), Debtor's supplemental briefing (dkt. 71, 72), scheduling order (dkt. 88), Ms. Campos' second supplemental reply (dkt. 102)
The tentative ruling is to direct Debtor to continue making monthly transfers of $10,000 into Counsel’s client-trust account, subject to Debtor’s proposed procedures for a reduction in that amount in the event of unforeseen circumstances. The tentative ruling is to continue the matter with respect to Ms. Campos’ interest in pre- and post-petition accounts receivable, to be heard concurrent with the continued status conference (see below), with a deadline of 9/18/20 for Debtor’s response to Ms. Campos' second supplemental reply.
The foregoing tentative ruling presumes Ms. Campos' consent to a further extension of the time period in 11 U.S.C. 362(e). Alternatively, if Ms. Campos does not wish to consent, she is directed to say so at the hearing, and this Court will address whether her second supplemental reply constitutes implied consent and, if not, make a final ruling on the R/S Motion.
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
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Continued status conference: 9/29/20 at 1:00 p.m. No status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
This Court anticipates posting a tentative ruling at a later time.
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57)
There is no tentative ruling. The parties are directed to address the issues raised in Ms. Campos' opposition (dkt. 57). Debtor is also directed to explain the proposed expenditure of $800/mo. for "Personal Care, South Bay Family-Emily."
As to all questioned expenditures, Debtor is directed to address why
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they are monthly transactions "in the ordinary course" of Debtor's business (11 U.S.C. 363(c)(1)), or otherwise authorized by the Bankruptcy Code. See Dkt.51, Ex.A at p.6 (PDF p.7) (last line on page). See generally In re Villalobos, 2011 WL 4485793, 2011 Bankr.LEXIS 4329 (9th Cir. BAP August 19, 2011) (noting uncertain legal standards applicable to budget review); In re Seely, 492 B.R. 284, 290-291 (Bankr. C.D. Cal. 2013) (approval required for living expenses or other expenses out of ordinary course in individual chapter 11 case); In re Goldstein, 383 B.R. 496, 499 (Bankr. C.D. Cal. 2007) (same); and cf. In re Salazar, 465 B.R. 875 (9th Cir. BAP 2012) (citing cases re same in chapter 13). See also In re Concoff (case no. 2:13-bk-37328-NB, dkt. 246) (permissible expenses for disposable income requirement in 11 U.S.C.
1129(a)(15)).
Patient care ombudsman motion (dkt. 28), proof of service (dkt. 37), no opposition is on file
The tentative ruling is to grant the motion.
Debtor's motion for leave to file documents under seal (dkt. 41), Yunuen Campos' response (dkt. 44), Debtor's reply (dkt. 45), order setting hearing (dkt. 47)
Debtor moves for an order authorizing him to file under seal a motion authorizing the assumption of a mediation term sheet between Debtor and Yuneun Campos. Ms. Campos objects to the admissibility of the mediation term sheet on the grounds that it is protected by the evidence exclusion provision pursuant to California Evidence Code section 1119. The tentative ruling is to grant the motion as follows.
(i) Applicable law
"Privileges are narrowly construed, because they impede the full and fair discovery of truth." Yeager v. Yeager, 2008 U.S. Dist. LEXIS 74245, at *3 (E.D. Cal. Sep. 25, 2008) (citing Weil v. Investment/Indicators, Research & Management, Inc., 647 F.2d 18, 24 (9th Cir. 1981)). "The party asserting an evidentiary privilege has the burden to demonstrate that the privilege applies to the information in question." Id. (quoting Torney v. United States, 840 F.2d 1424, 1426 (9th Cir. 1988)).
"Under Federal Rule of Evidence 501, privileges provided by state law apply in civil actions only ‘with respect to an element of a claim or defense as to which State law supplies the rule of decision." Babasa v. LensCrafters,
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Inc., 498 F.3d 972, 974 (9th Cir. 2007) (citing Fed. R. Evid. 501; Breed v. U.S. Dist. Court for the N. Dist. Of Cal., 542 F.2d 1114, 1115 (9th Cir. 1976)). "State contract law governs how settlement agreements are construed and enforced, even if the underlying cause of action is federal." Karubian v.
Kaiser Ventures, LLC, 2018 U.S. Dist. LEXIS 235252, at *12 (C.D. Cal. Oct. 17, 2018) (citing United Commercial Ins. Serv., Inc., v. Paymaster Corp., 962 F.2d 853, 856 (9th Cir. 1992)). Therefore, California privilege law applies.
Two relevant provisions apply. First, California Evidence Code § 1119 states, in relevant part:
Except as otherwise provided in this chapter: (a) No evidence of anything said or any admission made . . . in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any . . . noncriminal proceeding (b) No writing . . . prepared in the course of, or pursuant to, a mediation . . . is admissible or subject to discovery, and disclosure of the writing shall not be compelled in any . . . noncriminal proceeding . . . (c) All communications . . . by and between participants in the course of a mediation . . . shall remain confidential.
Second, California Evidence Code § 1123 states, in relevant part:
A written settlement agreement prepared in the course of, or pursuant to, a mediation, is not made inadmissible, or protected from disclosure . . . if the agreement is signed by the settling parties and any of the following conditions are satisfied: (a) The agreement provides that it is admissible or subject to disclosure, or words to that effect. (b) The agreement provides that it is enforceable or binding or words to that effect.
This Court notes that the foregoing provisions are also consistent with the Rules 6.1 and 6.5 set forth in Appendix III of the Local Bankruptcy Rules, governing mediations in this district.
As the party asserting the privilege, Ms. Campos bears the burden of demonstrating that the exception set forth in California Evidence Code § 1123 do not apply. The tentative ruling is that Ms. Campos has not carried that burden. In support of her opposition, Ms. Campos simply concludes that "the requirements of California Evidence Code are not met to render any of the exhibits admissible" and "[t]here is no doubt the Mediation Term Sheet is inadmissible and confidential." Dkt. 44, p.3: 5-6 & 20-21. This is not
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sufficient.
Alternatively, the tentative ruling is that authorizing the Debtor to file the Mediation Term Sheet under seal will enable this Court to determine whether an exception to California Evidence Code § 1123 applies while still protecting the contents of the document from public disclosure.
Yunuen Campos' motion for relief from the automatic stay (dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56)
The tentative ruling is to grant in part, deny in part, for the reasons stated in the tentative ruling for that motion (Calendar No. 12, 8/18/20 at 1:00 p.m.).
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, if authorized, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 9/15/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
2:00 PM
Docket 313
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 65
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20
Docket 1
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
The tentative ruling is that (x) Debtor has adequately addressed Post's objection; (y) Debtor has adequately addressed the non-materiality of her proposed minor modifications to the Plan (i.e., re-balloting is not required); and (z) Debtor has provided sufficient arguments and evidence to overrule most of the Guptas' objections. The Guptas' objections that Debtor has not yet sufficiently addressed are explained below.
Best Interest Test (11 U.S.C. 1129(a)(7)): Debtor's calculations require an adjustment, but even with an adjustment the Guptas have not rebutted Debtor's showing that the Plan satisfies the best interest test
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The tentative ruling is that Debtor's alternative liquidation analysis
(dkt.335, pp.11-12) should be adjusted to account for the possibility that the secured claim asserted by Patch Of Land ("Patch" or "POL") might be reduced to some extent, based on objections to default interest and other claims by the bankruptcy estate. But the tentative ruling - based on this Court's familiarity with numerous disputes in other cases regarding default rates of interest and other charges - is that the possibility of such reduction, discounted to present value, is less than shortfall in funds that would be availabe in any hypothetical chapter 7 case. See Debtor's Reply (dkt.335),
p.12. See generally, e.g., East-West Bank v. Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019)
The tentative ruling is that a precise dollar estimate is not required because the shortfall is hundreds of thousands of dollars; the discount to Patch's claim would not be greater than that. In other words, even with the adjustment to Patch's claim as described above, there would be $-0- for general unsecured creditors in a hypothetical chapter 7 case.
Alternatively, assuming for the sake of discussion that any adjustments to Debtor's liquidation analysis would be enough to provide any projected recovery for nonpriority unsecured creditors, that in itself does not establish that liquidation would be in the best interests of creditors. Rather, the issue would require further evidence because any such projected chapter 7 recovery still would have to exceed the projected recovery under Debtor's proposed Plan, and the latter requires more evidence (as noted below).
Adequate means for implementation (11 U.S.C. 1123(a)(5)) and feasibility (11 U.S.C. 1129(a)(11))
Debtor is directed to address whether she has evidence of sufficient loan commitments and/or gift commitments from family and friends to make her proposed commitments in the Plan adequate and feasible. See, e.g., Debtor's Reply (dkt.335), p.14:2-8. The parties are directed to address whether any evidentiary hearing will be necessary to address the sufficiency of such evidence, and the possible scheduling of any such evidentiary hearing and any related matters.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
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AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/6/20 at 2:00 p.m. and/or an evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post-confirmation status conference for 1/12/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 134
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar. No. 5, 9/29/20 at 2:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 8/18/20 at 2:00 p.m.).
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19,
3/10/20, 6/16/20, 8/18/20
Docket 5
Tentative Ruling for 9/29/20:
Appearances required by counsel for the debtor.
Current issues
Pre-trial conference
Continue to the same date and time as the continued status conference as set forth below.
Status of mediation
Debtor is directed to appear to provide an update on the status of mediation efforts.
Missing MORs
As of the preparation of this tentative ruling, Debtor has not filed a monthly operating report for August. Why not?
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: See above
Continued status conference: 11/10/20 at 2:00 p.m., Brief written status report due 10/27/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
Docket 270
Debtor(s):
Jeffrey Mark Freeman Represented By
James D. Hornbuckle Mark T Young
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
03/12/19, 3/26/19; 08/06/19, 11/5/19, 12/10/19,
3/10/20, 6/30/20
Docket 0
Tentative Ruling for 9/29/20:
Continue this status conference to 1/26/21 at 2:00 p.m., with a brief status report due 1/12/21 based on Debtor's status report (dkt. 1537). Appearances are not required on 9/29/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Saeed Cohen Represented By
Ron Bender
Krikor J Meshefejian Kurt Ramlo
Beth Ann R Young Todd M Bailey
2:00 PM
Docket 178
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 9/29/20 at 2:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the status conference (calendar no. 12, 9/1/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
2:00 PM
#9.00 Cont'd Combined hrg re: Final Approval of Disclosure Statement and Confirmation of Plan fr. 6/30/20, 7/28/20, 9/1/20, 9/15/20
Docket 124
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 10, 9/29/20 at 2:00 p.m.).
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the status conference (calendar no. 20, 6/30/20 at 1:00 p.m.)
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
2:00 PM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20, 5/5/20, 6/30/20, 7/28/20, 9/1/20, 9/15/20
Docket 1
Tentative Ruling for 9/29/20:
This Court anticipates issuing a written tentative ruling prior to the hearing.
Tentative Ruling for 9/15/20:
This Court anticipates issuing a written tentative ruling prior to the hearing.
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
9:00 AM
Docket 49
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 60
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
Attorney fees
Movant requests that its attorney fees be allowed. The tentative ruling is that this Court will not express any view regarding any attorney fee request because (a) in any nonjudicial foreclosure action, attorney fee issues typically are not decided by a court (and in a judicial foreclosure it is the State Court, not this Bankruptcy Court, that would determine attorney fee issues), (b) a
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motion for relief from the automatic stay is not the proper vehicle to adjudicate attorney fees in this Bankruptcy Court, and (c) this hearing does not involve any claim objection or other proceeding that might properly present that issue for this Court's determination.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Victor Luna Rivera Represented By
Raj T Wadhwani
Movant(s):
U.S. Bank National Association as Represented By
Ashish R Rawat Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK, NA vs
DEBTOR
Docket 37
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
10:00 AM
Debtor(s):
Nestor Perez Represented By
Brad Weil
Joint Debtor(s):
Felipa Perez Represented By
Brad Weil
Movant(s):
U.S. Bank, N.A., successor trustee to Represented By
Robert P Zahradka Jennifer C Wong
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
JOSEPH RIVERA
vs DEBTOR
Docket 31
Grant in part and continue in part to 10/27/20 at 10:00 a.m. as set forth below. Appearances are not required on 10/6/20.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Debtor's opposition (dkt. 35), Movant's reply (dkt. 43) & request for judicial notice (dkt. 44)
Analysis: The tentative ruling is that the reasons stated in Movant's papers are entirely persuasive, with one exception: In Movant's reply (dkt. 43, p.4:16-19) Movant suggests that a sale the subject property or some equivalent use of the property to generate cash would be required to make such property "necessary for a reorganization." This Court disagrees.
In individual cases, retaining a residence can be a necessary component of reorganizing the debtor's finances. The property does not need to generate income by itself.
That said, the reorganization must have a reasonable possibility of being confirmed within a reasonable time in order for the property to be necessary for a reorganization. Debtor fails that test for the reasons stated in the Movant's papers.
Relief: The tentative ruling is to grant the following relief. Termination
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Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: Lucio Valenzuela Marquez.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant (i) serving, on the day after the current hearing date, the motion papers and notice of the continued hearing date, and (ii) filing that notice and a proof of service no later than the next day. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
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any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Hilda Gonzalez Jimenez Represented By William G Cort
Movant(s):
Joseph Rivera Represented By Michael N Nicastro
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE REO GROUP, INC.
vs DEBTOR
Docket 20
- NONE LISTED -
Debtor(s):
Marc Thanh Hoang Represented By Patricia Rodriguez
Movant(s):
The REO Group, Inc. Represented By Coby Halavais
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
THE LEBBY FAMILY TRUST
vs DEBTOR
Docket 15
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (#2:19-bk-21042-NB) was dismissed (on 7/8/20) within one year before this case was filed (on 8/11/20),
(b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11- bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be
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vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
David Edward Falcon Pro Se
Movant(s):
Thomas B. Ure Pro Se
The Lebby Family Trust, Dated Represented By Thomas B Ure
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
QUICKFIX, LLC
vs DEBTOR
Docket 15
Grant, subject to any oppositions at the hearing, in view of Movant's failure to comply with Judge Bason's posted procedures (available at www.cacb.uscourts.gov), which direct that oppositions must be filed no later than five days prior to the hearing (see dkt. 15, p.2, para. 7). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Grant the motion under 11 U.S.C. 362(c)(3) and (j): there is no automatic stay because (a) Debtor's prior case (2:19-bk-13302-VZ) was pending within the preceding one year period before this case was filed (on 9/1/20) and dismissed on 9/10/20, (b) that dismissal was not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. See In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does
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not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at
10:00 AM
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marco Macias Pro Se
Movant(s):
QUICKFIX LLC Represented By Helen G Long
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 69
Debtor(s):
Ricardo Corona Represented By Michael V Jehdian
Joint Debtor(s):
Maricela Corona Represented By Michael V Jehdian
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 76
Appearances required.
There is no tentative ruling, but Mr. Michael V. Jehdian, Esq. should be prepared to address the issues raised in this Court's order to show cause (dkt. 76), and his responsive declaration (dkt. 85), including what sanction might be appropriate and what specific procedures he has implemented to safeguard against similar issues in future.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Ricardo Corona Represented By Michael V Jehdian
Joint Debtor(s):
Maricela Corona Represented By Michael V Jehdian
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 85
Tentative Ruling for 10/6/20:
Appearances required.
This matter was continued to this date to allow time for the parties to negotiate the terms of an adequate protection stipulation. There is no tentative ruling, but the parties should be prepared to discuss the progress on these negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's
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response, dkt. 88).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Alexander Karimi Represented By Julie J Villalobos
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA
vs DEBTOR
Docket 36
Tentative Ruling for 10/6/20:
Appearances required.
This matter was continued to this date to allow time for the parties to review their accounting. There is no tentative ruling, but the parties should be prepared to discuss the status on those investigations and whether the parties will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties
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who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's untimely response, dkt. 39). In addition, Debtor's counsel is directed to address why there was no compliance with the following requirement in the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov): "If your opposition or reply papers are filed late, you must include a brief explanation (and a request to accept such papers)."
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jamal Curtis Alexander Represented By Barry E Borowitz
Movant(s):
HSBC Bank USA, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ASSET-BACKED CERTIFICATES, SERIES 2006-22
vs DEBTOR
Docket 44
Debtor(s):
Therese Kiwi Foisia Represented By Nima S Vokshori
Movant(s):
The Bank of New York Mellon FKA Represented By
Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 31
Tentative Ruling for 10/6/20:
Appearances required.
This matter was continued to this date to allow time for Debtors to explore various options to address the issues raised in Movant's motion papers and investigate the status of an alleged loan modification. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required.
This matter was continued to this date to allow time to determine the status of any loan modification negotiations with Debtor. There is no tentative ruling, but the parties should be prepared to provide an update on the status of
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those investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/16/20 hearing, this Court stated that it would take up the issue of an adequate protection order at this continued hearing. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Tentative Ruling for 6/16/20:
Continue this hearing to 8/24/20 at 10:00 a.m., in view of the three month forbearance agreement (see dkt. 35). Appearances are not required on 6/16/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Bryan C Woods Pro Se
Joint Debtor(s):
Donna P Woods Pro Se
Movant(s):
Wilmington Savings Fund Society, Represented By
Nichole Glowin Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 0
Appearances required. There is no tentative ruling. The parties are directed to address (1) shortening time (see OST, dkt.5) and (2) the merits of the motion (dkt.7).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Dedra M Chachere-Hunt Represented By Kahlil J McAlpin
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01172 Tellez et al v. FCI LENDER SERVICES, INC. et al
Docket 1
- NONE LISTED -
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Defendant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds Joseph P Buchman
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Plaintiff(s):
Roseanna Tellez Represented By Anthony P Cara
Sergio Tellez Represented By
Anthony P Cara
11:00 AM
fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19, 2/4/20, 4/7/20, 7/14/20, 09/01/20
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
Docket 43
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
Adv#: 2:19-01211 Avery v. Wellington et al
2. Turnover of Bankruptcy Estate Property Under 11 U.S.C. Section 542(a); and 3. Authorization to Sell Estate Property Under 11 U.S.C. Section 363(h) and FRBP 7001(3) Free of Co-Owner Interest; 4. Bar Debtor and Amos Q. Wellington from Recovering Avoided Transfer Under Bankruptcy Code, Under 11 U.S.C. Section 522(g)(1)(A) and (B)
fr. 9/24/19, 11/12/19, 3/10/20, 7/14/20, 09/01/20
Docket 1
Debtor(s):
Letitia Louise Wellington Pro Se
Defendant(s):
Letitia Louise Wellington Pro Se
Amos Q. Wellington Pro Se
Jonathan Wellington Pro Se
Michael Wellington Pro Se
Plaintiff(s):
Wesley H Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
1:00 PM
Adv#: 2:20-01172 Tellez et al v. FCI LENDER SERVICES, INC. et al
Docket 1
- NONE LISTED -
Debtor(s):
Sergio Tellez Represented By
Todd B Becker
Defendant(s):
FCI LENDER SERVICES, INC. Represented By
Richard J Reynolds Joseph P Buchman
CALIFORNIA TD SPECIALISTS Represented By
Richard J Reynolds Joseph P Buchman
Joint Debtor(s):
Roseanna Tellez Represented By Todd B Becker
Plaintiff(s):
Sergio Tellez Represented By
Anthony P Cara
Roseanna Tellez Represented By Anthony P Cara
1:00 PM
Docket 139
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Michael R Totaro Yevgeniya Lisitsa
1:00 PM
Docket 147
- NONE LISTED -
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Movant(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
fr. 4/7/20, 5/5/20, 5/12/20, 6/2/20, 7/28/20, 9/1/20, 9/29/20
Docket 6
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
Israel & Krasnoff, LLP As General Counsel To Chapter 11 Debtor And Debtor In Possession
Docket 125
Please see the tentative ruling for the status conference (Calendar No. 7, 10/6/20 at 1:00 p.m.).
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
Docket 127
Please see the tentative ruling for the status conference (Calendar No. 7, 10/6/20 at 1:00 p.m.).
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
Docket 1
Tentative Ruling for 10/6/20:
Continue as set forth below. Appearances are not required on 10/6/20.
Current issues
Second Interim Fee Application of Danning, Gill, Israel & Krasnoff, LLP ("Applicant") (dkt. 125, 126), NVSI, Inc.'s limited opposition (dkt. 132), Applicant's reply (dkt. 134)
The tentative ruling is to approve second interim fees of $113,551.50 and expenses of $577.92, for a total award of $114,129.42, but prohibit payment of the approved fees absent a further order of this Court. The tentative ruling is to authorize and direct Debtor to pay the expenses immediately.
First Interim Fee Application of LEA Accountancy, LLP (dkt. 127, 126, 130), no opposition is on file
The tentative ruling is to approve and allow payment of first interim fees of $8,973 and expenses of $207.05, for a total award of $9,180.05.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 12/11/20 using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline
1:00 PM
and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m. Brief status report due 11/17/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
Docket 342
Please see the tentative ruling for the status conference (Calendar No. 13, 10/6/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Claim nos. Claimant
6 Chien Feng Lin
9 John Iozzi
33 Liang-Tsan Fan
38 Lian Jeng Lin
13 Michael T. Yu
34 MIng-Sheun Wu
8 Tim Liau
32 Trung K. Thai
39 Yan Wu
Docket 347
Please see the tentative ruling for the status conference (Calendar No. 13, 10/6/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith
1:00 PM
Juliet Y Oh
1:00 PM
Docket 325
- NONE LISTED -
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Claim No. 22 - FedEx Corporate Services, Inc. Claim No. 23 - FedEx Corporate Services, Inc.
Docket 321
Please see the tentative ruling for the status conference (Calendar No. 13, 10/6/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Scheduled Claim of Cresyn Co., Ltd.
Scheduled Claim of E-Century Technical & Industrial Corp.
Claim No. 25 Filed by Fabrique. Ltd.
Scheduled Claim of GGEC Hong Kong Limited
Scheduled Claim of Lite-On Technology Corporation
Scheduled Claim of Primax Electronics, Ltd.
Scheduled Claim of Shanghai Korrun Bags & Luggage Products
Scheduled Claim of The Outdoor Recreation Group, LLC
Docket 329
Please see the tentative ruling for the status conference (Calendar No. 13, 10/6/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20, 9/1/20, 9/29/20
Docket 1
Tentative Ruling for 10/6/20:
Grant the claim objections in substantial part as set forth below. At the hearing, this Court will review key aspects of Debtor's proposed Disclosure Statement and proposed Plan. Appearances required.
Current issues
Disclosure Statement (dkt. 379) and Plan (dkt. 378)
The tentative ruling is to set a deadline of 10/13/20 for Debtor to file redlined versions of these documents, incorporating any changes discussed at the hearing, and lodge a proposed order, substantially in the form of the order posted on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), authorizing the service of a voting package and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for 12/8/20 at 1:00 p.m.
First omnibus claim objection (dkt. 321) & notice (dkt. 322, 323), no opposition is on file
Grant the first omnibus claim objection and disallow Claims 22 & 23 on the ground that they appear to be claims against unrelated debtors, but allow the claims in the amended amounts of $347.44 and $457.08 as general unsecured claims, consistent with Debtor's books and records.
Second omnibus claim objection (dkt. 329, 330) & notice (dkt. 330-339), no opposition is on file
Grant the second omnibus claim objection and disallow the claims in their entirety.
1:00 PM
Third omnibus claim objection (dkt. 342, 343) & notice (dkt.
344-346), Los Angeles County Treasurer and Tax Collector's ("LA Tax") withdrawal of claim 2 (dkt. 370), no opposition is on file
Grant the third omnibus claim objection as to Bizlink Technology, Inc. (Claim 4) and IBM Credit, LLC (Scheduled claim) and disallow those claims in their entirety. Deny the second omnibus claim objection as to LA Tax as moot in view of the withdrawal of Claim 2.
Fourth omnibus claim objection (dkt. 347) & notice (dkt. 348-356), no opposition is on file
Grant the fourth omnibus claim objection and allow the claims to be reclassified in the amounts requested.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
Plan/Disclosure Statement*: see above
Continued status conference: 10/27/20 at 1:00 p.m., concurrent with other matters. No written status report due required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 6
Tentative Ruling for 10/6/20:
Continue as set forth below. Appearances are not required on 10/6/20.
Current issues
Continuance for amended Disclosure Statement and Plan
On 9/16/20, this Court approved a stipulation (dkt. 69) that continued the deadline for Debtor to file and serve his amended Disclosure Statement and Plan to 10/15/20. Accordingly, this status conference is continued to the date set forth below (section 2(d)) to allow this Court an opportunity to review those papers.
Amended Bankruptcy Schedules I & J
Debtor has now complied with the instructions in Bankruptcy Schedule I, line 8a, by attaching a statement of gross receipts, expenses, and net income regarding the Wonderland rental property, showing a monthly loss of
$507.55, after deducting principal and interest, real estate taxes, insurance, and only $50.00 for "[r]epairs, maintenance, and vacancy reserves." See dkt.66, p.4. First, this Court questions whether the $50.00 amount just noted is sufficient. Second, neither the $507.55 loss nor its component parts appear to be reflected on line 8a or anywhere else in Bankruptcy Schedules I and J. The tentative ruling is to direct Debtor, no later than 10/15/20, to file further amended Bankruptcy Schedules I and J and/or Debtor's declaration addressing the foregoing.
Monthly Operating Report ("MOR") for Aug., 2020
The MOR reflects almost $17,000 in delinquent adequate protection payments (see dkt.71 at PDF p.16), which dwarfs the reported $4,223.77 and
$45.00 balances in Debtor's DIP accounts. At the continued Status Conference, Debtor is directed to address how Debtor will be able to propose a feasible plan of reorganization in view of these apparent postpetition losses.
1:00 PM
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file by 10/15/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Monthly Operating Reports ("MORs")
1:00 PM
Debtor's June 2020 MOR (dkt.58) discloses non-payment of
postpetition monthly amounts owed to secured creditors. What is the current status of Debtor's postpetition defaults?
Debtor's July 2020 MOR (dkt.64) is missing the page that would have made similar disclosures, and appears to be missing a number of other pages. What is missing? The tentative ruling is to set a deadline of 9/15/20 for Debtor to file an amended July 2020 MOR.
Chapter 11 Plan (the "Plan," dkt. 63) and Chapter 11 Disclosure Statement (the "Disclosure Statement," dkt. 61)
Debtor's projection of income (dkt.61, Ex.C, at PDF pp.8-9) cross- references dkt.20 (Debtor's Bankruptcy Schedules) for a breakdown of Debtor's personal income and expenses and rental income and expenses. There are two problems with that approach.
First, Debtor's Bankruptcy Schedule I does not include any breakdown of income and expenses, despite the instruction on line 8a to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Second, Debtor appears to be double-counting. Specifically, Debtor's Plan includes payment of the 2d mortgage on Debtor's home (dkt.63, Ex.A, at PDF p.9, Class 1B), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.27, last line); and likewise Debtor's Plan includes payment of the 1st DOT on the rental property (dkt.63, Ex.A, at PDF p.9, Class 2A), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.28, line 17c).
The tentative ruling is to set a deadline of 9/15/20 for Debtor (i) to file (but NOT serve) an amended Bankruptcy Schedule I with the required "statement for each property or business," an amended Plan, and an amended Disclosure Statement correcting the above issues, and (ii) to lodge a proposed order, in the form provided on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same date and time as the continued status conference (see Section 2(d) below).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
1:00 PM
Plan/Disclosure Statement*: See above
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20, 7/28/20, 8/18/20, 9/1/20
Docket 1
Tentative Ruling for 10/6/20:
Continue to 10/27/20 at 1:00 p.m., concurrent with the hearing on the UST's Motion to Dismiss or Convert (dkt. 214). Appearances are not required on 10/6/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required on Debtor’s motion to sell 6520 and 6522 Brynhurst Avenue (dkt. 174) only.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
1:00 PM
Current issues
Debtor’s motion to sell 6520 and 6522 Brynhurst Avenue (dkt. 174, 175, 177); IRS opposition (dkt. 189); Debtor reply (dkt.191)
Grant, subject to the conditions set forth below, and further subject to any overbids.
Service
Although there is no proof of service of this Court's order granting Debtor's application for an order shortening time (the "OST," dkt. 178), as required therein, there is a proof of service of notice of sale (dkt.175) on all creditors with the correct hearing date and time, so the tentative ruling is to excuse Debtor's lack of full compliance with the OST.
Dual agency
The order granting Debtor's application (dkt.88) to employ real estate agent Elsabeth Araya of Real Estate Executives specifically provided, "no dual agency." Order (dkt.126), p.2 (emphasis in original). But it appears that Ms. Araya's office has served as agent for both the buyer and the seller. See Sale Motion (dkt.174, Ex.1, at PDF p.21). The tentative ruling is that an independent real estate agent must be brought in to represent the buyer.
Grounds for sale free and clear
On the one hand, the Internal Revenue Service ("IRS") is correct (Opp., dkt.189, p.3, n.5) that the motion does not specify which paragraph of section 11 U.S.C. 363(f) is alleged to apply, and that implicitly it is paragraph "(4)" regarding an alleged "bona fide dispute." The tentative ruling is that the IRS is also correct that, on the present record, it would not be adequately protected unless Debtor segregates all net proceeds (after payment of other liens and costs of sale including any capital gains tax payment) until further order of this Court.
On the other hand, the tentative ruling is that Debtor has raised a sufficient dispute regarding the IRS claim to constittue a "bona fide dispute" and therefore (subject to the adequate protection referenced above) the sale can proceed. In support of Debtor's allegation that there is a bona fide dispute, his declaration (dkt.174) states:
A portion of the tax lien is subject to claim objection based on my allegation that I was the subject of fraud. (Docket Number 155). The hearing has been continued to November 3, 2020 pending the IRS review of its own documents. Escrow will pay $115,652.03 which constitutes the undisputed portions of the 2018 tax lien.
1:00 PM
[Dkt.174 at PDF p.9:23-26 (emphasis in original).]
The referenced claim objection (dkt.155) includes Debtor's declaration which sets forth alleged identity theft/fraud that, on an objective basis, appears to establish a bona fide dispute. See dkt.155, pp.5-6. See also IRS Obj. (dkt.189, p.3) (citing authorities re meaning of "bona fide dispute").
As for adequate protection, Debtor's reply (dkt.191) states:
The Debtor does not oppose the need to segregate sales proceeds except for the projected $50,000 in capital gains taxes pending the resolution of the [IRS] Claim and this need to segregate should not act as a barrier to completing the sale.
$278,427,33 has been budgeted for the Service [i.e., the IRS], with
$135,000.00 to be paid immediately and with approximately
$143,427.33 to be segregated pending the conclusion of litigation of the Claim. [Dkt.191, p.1:23-27.]
The tentative ruling is that this proposed adequate protection is sufficient. In addition, the tentative ruling is that Debtor has established sufficient benefit to the bankruptcy estate and justification for the proposed sale under 11 U.S.C. 363(b), for the reasons set forth in the reply. See dkt.191.
"Good faith" finding
Debtor seeks a "good faith" finding under 11 U.S.C. 363(m). The tentative ruling is that any winning bidder must file declaration(s), preferably from both Debtor and the winning bidder, substantially in the form set forth in the "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
Dispute under the stipulation for use of cash collateral and adequate protection (the "Stipulation," dkt. 62)
The tentative ruling is that, based on representations at prior hearings, this matter has been fully resolved and should go off calendar.
Debtor’s motion to disallow claim no. 9 of Two Jinn Inc. (dkt. 152),
1:00 PM
Supplemental declaration of Stella Havkin (dkt. 188) Grant.
This Court expressly finds that Counsel has provided a cost/benefit analysis (dkt. 188) that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections, so any limitation on fees in the prior tentative ruling on this matter is hereby vacated.
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: TBD. Debtor must use the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/6/20 at 1:00 p.m. No status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 1
Tentative Ruling for 10/6/20:
Continue as set forth below based on this Court's review of the trustee's status report (dkt. 190). Appearances are not required on 10/6/20.
Current issues
This Court has no issues to raise sua sponte.
Deadlines/dates. This case was filed on 2/14/20.
Bar date: 6/30/20 (dkt. 160; timely served, dkt. 161, 171).
Procedures order: dkt.5. (no proof of service)
Plan/Disclosure Statement*: TBD
Continued status conference: 2/9/21 at 1:00 p.m. Brief status report due 1/26/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Korean Western Presbyterian Church Represented By
Victor A Sahn Steven Werth
1:00 PM
Docket 56
Tentative Ruling for 10/6/20:
Continue as set forth below. Appearances are not required on 10/6/20.
Current issues
This Court has reviewed the latest filed documents in this case, including the Status Report (dkt. 108), and is not aware of any issues that would warrant a status conference at this time.
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 11/24/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/8/20 at 1:00 p.m, brief status report due 11/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888)
1:00 PM
882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Migan Murray Represented By Andrew Moher
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 06/16/20, 7/14/20, 09/01/20
Docket 1
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Pro Se
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Barbee Argaez De Chuc Represented By James A Judge
1:00 PM
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 7/14/20, 7/28/20, 09/01/20
Docket 11
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo
Plaintiff(s):
William Garcia Represented By James A Judge
Roberto Melendez Represented By James A Judge
Barbee Ann Arocho Represented By James A Judge
Jose Chuc Represented By
James A Judge
Teresa DeJesus Ramos Represented By James A Judge
1:00 PM
Carlos Canales Represented By James A Judge
Arturo Avila Represented By
James A Judge
Froilan Hernandez Lorenzo Represented By James A Judge
Levi A. Anonuevo Represented By James A Judge
Gilbert Martinez Represented By James A Judge
Ofelia Argaez de Chuc Represented By James A Judge
1:00 PM
Docket 6
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 0
Appearances required by counsel for Debtor and by Debtor's principal.
Current issues
The Debtor's status report (dkt. 14, p.2, para. 2) states that Debtor "owns a single asset- one parcel of real property located at 701 N. Hillcrest Road, Beverly Hills, CA 90210," which Debtor intends to market and sell.
Debtor's Bankruptcy Schedule A/B and Statement of Financial Affairs ("SOFA") describe that property as residential property worth $20,000,000.00 (dkt.19, line 55, at PDF p.7) at which Debtor's sole equity interest holder and her children reside rent-free (although her mailing address is in Indonesia).
Dkt.19-1, at PDF p.15, and dkt.19-2.
Procedures order and mailing matrix
The Procedures Order (dkt.4) directed Debtor to serve a copy of that order on all parties in interest, but Debtor's proof of service (dkt.6) appears to omit (i) at least one (disputed) creditor - Medallion Capital Financial (Schedule E/F, line 3.2, dkt.19 at PDF p.15); (ii) Debtor's sole equity interest holder/creditor (id., line 3.1); and (iii) Debtor's director, Andre Djaafar (SOFA, line 28, dkt.19-1 at PDF p.13). Debtor's mailing matrix also omits at least those parties.
The tentative ruling is to set a deadline of 10/8/20 for Debtor to file (x) a proof of service on all parties in interest who were not originally served with the Procedures Order and (b) an amended mailing matrix.
Single Asset Real Estate Case?
Debtor does not disclose if there are fewer than four residential units at the property. Debtor is directed to address at the status conference whether it should have designated itself as a single asset real estate ("SARE") debtor (11 USC 101(51B)) and, if so, whether its proposed date for filing a plan is consistent with 362(d)(3).
Deadlines/dates. This case was filed on 9/15/20.
1:00 PM
Bar date: 12/7/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 4 (timely served, dkt.6, but see item "(1)(a)" above)
Plan/Disclosure Statement*: file by 1/13/21 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
New Hillcrest Inc., a Cayman Island Represented By
Brett Ramsaur
2:00 PM
8/20/19, 9/17/19, 10/15/19, 10/29/19, 12/10/19,
1/28/20, 03/31/20, 6/16/20, 8/18/20
Docket 5
Debtor(s):
Jackies Cookie Connection LLC Represented By
Derrick Talerico Marlee E Sherman Michael S Kogan David B Zolkin
2:00 PM
9/1/20
Docket 31
Tentative Ruling for 10/6/20:
Appearances required by counsel for the debtor.
Current issues.
Status of any progress since the last hearing
At the 9/1/20 hearing, Debtor's counsel represented to this Court that he was in communication with creditors regarding a structured dismissal.
Debtor should be prepared to provide an update on the status of those negotiations.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD
Continued status conference: 11/10/20 at 2:00 p.m., with no status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
2:00 PM
COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 65
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 313
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20
Docket 1
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 65
Tentative Ruling for 10/14/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 10/14/20 at 10:00 a.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 313
Tentative Ruling for 10/14/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 10/14/20 at 10:00 a.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20
Docket 1
[Note: The hearing on 10/6/20 was continued to 10/14/20 (dkt.339)] Tentative Ruling for 10/14/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued
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hearing/status conference on 10/27/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post- confirmation status conference for 2/9/21 at 2:00 p.m. and a 1/26/21 deadline to file a post-confirmation status report.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
The tentative ruling is that (x) Debtor has adequately addressed Post's
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objection; (y) Debtor has adequately addressed the non-materiality of her proposed minor modifications to the Plan (i.e., re-balloting is not required); and (z) Debtor has provided sufficient arguments and evidence to overrule most of the Guptas' objections. The Guptas' objections that Debtor has not yet sufficiently addressed are explained below.
Best Interest Test (11 U.S.C. 1129(a)(7)): Debtor's calculations require an adjustment, but even with an adjustment the Guptas have not rebutted Debtor's showing that the Plan satisfies the best interest test
The tentative ruling is that Debtor's alternative liquidation analysis (dkt.335, pp.11-12) should be adjusted to account for the possibility that the secured claim asserted by Patch Of Land ("Patch" or "POL") might be reduced to some extent, based on objections to default interest and other claims by the bankruptcy estate. But the tentative ruling - based on this Court's familiarity with numerous disputes in other cases regarding default rates of interest and other charges - is that the possibility of such reduction, discounted to present value, is less than shortfall in funds that would be availabe in any hypothetical chapter 7 case. See Debtor's Reply (dkt.335),
p.12. See generally, e.g., East-West Bank v. Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019)
The tentative ruling is that a precise dollar estimate is not required because the shortfall is hundreds of thousands of dollars; the discount to Patch's claim would not be greater than that. In other words, even with the adjustment to Patch's claim as described above, there would be $-0- for general unsecured creditors in a hypothetical chapter 7 case.
Alternatively, assuming for the sake of discussion that any adjustments to Debtor's liquidation analysis would be enough to provide any projected recovery for nonpriority unsecured creditors, that in itself does not establish that liquidation would be in the best interests of creditors. Rather, the issue would require further evidence because any such projected chapter 7 recovery still would have to exceed the projected recovery under Debtor's proposed Plan, and the latter requires more evidence (as noted below).
Adequate means for implementation (11 U.S.C. 1123(a)(5)) and feasibility (11 U.S.C. 1129(a)(11))
Debtor is directed to address whether she has evidence of sufficient loan commitments and/or gift commitments from family and friends to make
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her proposed commitments in the Plan adequate and feasible. See, e.g., Debtor's Reply (dkt.335), p.14:2-8. The parties are directed to address whether any evidentiary hearing will be necessary to address the sufficiency of such evidence, and the possible scheduling of any such evidentiary hearing and any related matters.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/6/20 at 2:00 p.m. and/or an evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post-confirmation status conference for 1/12/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
10:00 AM
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
8:30 AM
Docket 76
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 80) and Debtors' response (dkt.84).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Roberto Rodriguez Represented By Vernon R Yancy Renae Pearson
Joint Debtor(s):
Patricia Rodriguez Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 41
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 37) and whether Debtor's supplemental declaration (dkt. 41) sufficiently addresses those issues.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Dagoberto De Los Angeles Gutierrez Represented By
Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Erik Dye Represented By
David Samuel Shevitz
Joint Debtor(s):
Monica Dye Represented By
David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 22
Address the factual and legal issues described below at the hearing, and then continue this matter to 11/19/20 at 8:30 a.m., with a deadline of 11/5/20 for claimant TY Investment LLC ("TY Investment") to file supplemental papers addressing the issues raised in Debtor’s reply and Debtor's evidentiary objections. Appearances required on 10/22/20.
Key documents reviewed (in addition to motion papers): Debtor’s supplemental memorandum of points and authorities (dkt. 37), TY Investment's opposition (dkt. 40), Debtor’s reply (dkt. 41), Debtor’s objections to Hu & Green Declarations (dkt. 42, 43)
Analysis:
Confusing arguments
Some of Debtor’s arguments are not entirely clear. Accordingly, the tentative ruling is that, in addition to the issues discussed below, the parties should be prepared to clarify their factual allegations and focus their legal arguments on all issues.
Reply raises new arguments
This Court has compared Debtor's original papers (dkt.22, 37) with his reply (dkt.41), and notes that Debtor's reply raises issues and arguments not asserted in the original papers. The tentative ruling is that it is not fair to TY Investment, nor to this Court which is put in the position of having to address the issues without the benefit of briefing from TY Investment. Therefore, the tentative ruling is to continue this matter, with the deadline stated at the start of this tentative ruling, for TY Investment to file a sur-reply, supplemental evidence and responses to Debtor’s evidentiary objections (dkt. 42, 43).
Notwithstanding the continuance, it appears appropriate to address some issues on a preliminary basis, so that TY Investment may focus its sur-
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reply papers, and so that both parties can focus their arguments at this hearing and the continued hearing.
Compound interest
The tentative ruling is that Debtor has the better argument regarding compound interest. Debtor argues:
California Civil Code Section 1916-2 provides that lenders may not charge compound interest "unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith." [(dkt.22, p.3:12-16 (emphasis added) (citing McConnell v. Merrill Lynch, Pierce, Fenner & Smith, lnc., 21 Cal.3d 365 (1978); Wishnev v. Northwestern Mutual Life Ins. Co., 162 F.Supp.3d 930 (2016))]
The parties agree that the critical language of the loan documents provides:
FINANCE CHARGE: We will determine and impose a FINANCE CHARGE by applying a daily periodic rate of 0.0548% to the daily unpaid principal balance for the number of days that balance remains unpaid in the billing cycle. The daily periodic rate is the ANNUAL PERCENTAGE RATE of 19.99% divided by 365. To
get the daily unpaid principal balance we will take the beginning balance each day, add any new debits or Cash Loans and subtract any payments or credits. ..." [dkt.22, Ex.A, PDF p.37 (emphasis added) (quoted at dkt.22, p.3:20-25)]
TY Investment argues that this language clearly provides for compounding interest. The tentative ruling is to reject TY Investment’s argument on multiple grounds.
First, a more natural reading of this language is exactly contrary to what TY Investment asserts. The "balance" is more naturally read to mean the principal balance, not principal plus interest (or any other charges).
Similarly, the phrase "any new debits" is more naturally read to mean debts such as payment of the senior lien, not interest (or any other charges).
Second, even if the language could be interpreted to compound interest (which it cannot reasonably be interpreted to do), that is anything but "clearly expressed." Cal.Civ.C. 1916-2. It would not be obvious to any reasonable person reading this provision that compound interest was intended.
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Third, if there were any doubt about the preceding two points (which
there is not) the spreadsheet attached to the proof of claim (dkt.22, Ex.A, pdf pp.18-32) shows that the original lender did not actually compound interest (or other charges), which strongly suggests that this was not the parties' original intent. The principal balance (in the right-hand column) remains the same for long periods of time regardless of such interest (and other charges) that are charged meanwhile (Id.).
Fourth, even if the loan documents could be read to charge compound interest (and add other charges to the principal due), adding such interest (and other charges) to principal would be unconscionable. See Dkt.37, p.16:1-18:9.
Fifth, Debtor asserts that TY Investment never sent a statement of overdue amounts. Dkt. 37, p.5:13-17. Debtor does not cite authority for the effect of that omission, but it appears that Debtor is implicitly arguing estoppel to assert compounding of interest (and other charges) because Debtor presumably could have taken other steps such as refinancing or selling the property if Debtor had known that the debt would balloon so drastically.
For each of the foregoing alternative reasons, the tentative ruling is to sustain Debtor's objection to any compounding of interest.
Statute of Limitations
Debtor contends that the debt is time-barred under California Code of Civil Procedure section 337(a)’s four-year statute of limitations (dkt.41, p.6:8) (citing White v. Moriarty, 15 Cal.App.4th 1290, 1299 (1993)). The tentative ruling is that because this issue was first raised in Debtor’s reply papers, this Court will defer ruling on the issue until TY Investment has had an opportunity to respond.
Registration
Debtor argues at length that various entities involved in the origination and servicing of his loan were not registered with an applicable California agency or otherwise licensed to conduct business at relevant times throughout the history of his loan. But Debtor has not cited any authority establishing that he has standing to object on these grounds, or that the result of not being registered is to extinguish some or all of the debt. Accordingly, on this record, this argument is not persuasive.
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Real estate broker
California Civil Code section 1916.1 provides, in full:
The restrictions upon rates of interest contained in Section 1 of Article XV of the California Constitution shall not apply to any loan or forbearance made or arranged by any person licensed as a real estate broker by the State of California, and secured, directly or collaterally, in whole or in part by liens on real property. For purposes of this section, a loan or forbearance is arranged by a person licensed as a real estate broker when the broker (1) acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another, (2) acts for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business for another and (A) arranges a loan to pay all or any portion of the purchase price of, or of an improvement to, that property or business or (B) arranges a forbearance, extension, or refinancing of any loan in connection with that sale, purchase, lease, exchange of, or an improvement to, real property or a business, or (3) arranges or negotiates for another a forbearance, extension, or refinancing of any loan secured by real property in connection with a past transaction in which the broker had acted for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business. The term “made or arranged” includes any loan made by a person licensed as a real estate broker as a principal or as an agent for others, and whether or not the person is acting within the course and scope of such license. [Emphasis added.]
"Licensed real estate brokers may be either individuals or corporations; the DRE [California Department of Real Estate] issues licenses to both.
When a license is issued to a corporation, it is through the license of a designated officer of the corporation." Creative Ventures LLC v. Jim Ward & Assoc., 195 Cal.App.4th 1430, 1442 (2011).
Debtor argues that the loan does not qualify for the licensed broker exemption from California’s usury prohibition, because TY Investment has failed to submit sufficient evidence on the elements of that exemption See dkt.41, pp.4:16-5:9 & 11:17-13:12 (citing, inter alia, In re Arce Riverside, LLC,
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538 B.R. 563 (Bankr. N.D. Cal. 2015), subsequent determination, 2015 WL
9590346 (Bankr. N.D. Cal. 2015); Creative Ventures, 195 Cal.App.4th 1430,
1442 (2011); Winnett v. Roberts, 179 Cal.App.3d 909, 921 (1986)).
The parties are directed to address (a) what elements Debtor asserts are legally required to satisfy section 1916.1 and (b) what evidence TY Investments expects to provide to satisfy each element. For example, Debtor appears to assert that TY Investments:
has not specifically identified what individual or entity allegedly acted as the licensed real estate broker who "made" the loan or "arranged" the loan "for another" for compensation (within the meaning of Cal. Civ. C. 1916.1),
that the individual on whom TY Investments appears to rely, Mr. Gerald William Green III, has not provided evidence that he was "a licensed broker" (dkt.41, p.12:26-27, emphasis added) at the relevant time,
that TY Investments has not provided evidence that Mr. Green was acting as an agent for Mortgage Loan Solutions (dkt.41, p.13:3-9), the entity identified as the lender in the loan agreement (dkt.22 at PDF p.35), as opposed to being an officer of a different entity, MLS Holdings, Inc. (dkt.41, p.13:3-5), and
that Mr. Green acted as "the lender," and hence purportedly is disqualified from having "arranged" a loan for "another" (within the meaning of Cal. Civ. C. 1916.1) (although this allegation appears to be potentially inconsistent with Debtor's assertion that Mortgage Loan Solutions was the lender, and also does not appear to address the exemption for a licensed real estate broker who has "made" a loan).
Evidentiary objections
The tentative ruling is to defer ruling on Debtor’s objections until TY Investment has had an opportunity to provide supplemental declarations and/or arguments addressing the factual and legal issues that Debtor has raised.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Abraham Valencia Represented By Steve Lopez
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
by Claimant Ramona Boulevard Homeowners Association.
Docket 37
Deny. Appearances are not required.
Proposed order: Claimant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Ramona Boulevard Homeowners Association's ("HOA") opposition (dkt. 43), no reply is on file
Reasons for denial: The tentative ruling is to deny the claim objection for the reasons stated in the HOA's opposition.
Lack of cost/benefit analysis: The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
Debtor's counsel is cautioned that failure to include a cost/benefit analysis in future claim objections in accordance with Judge Bason's Procedures may
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result in adverse consequences.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Lenda Ruth Potts Represented By William G Cort
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 28
Continue to 11/19/20 at 8:30 a.m. to address the following issues. Appearances are not required on 10/27/20.
Reasons:
Service.
The motion papers were not served on the Internal Revenue Service in required manner. See Rule 7004(b)(4)&(5) (Fed. R. Bankr. P.); Local Bankruptcy Rule 2002-2(c)(2). Addresses and instructions are included in the Court Manual. Debtor is directed to serve the moving papers in a manner consistent with this ruling and file a proof of service by no later than 10/30/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Gretchen D Zalamea Represented By
Jaime G Monteclaro
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 45
Continue to 11/19/20 at 8:30 a.m. to address the following issues. Appearances are not required on 10/22/20.
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter, unless and until this Court expressly finds: "Counsel has provided a
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cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Sasha Demovsky-Kapustyan Represented By Richard T Baum
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 6/25/20
Docket 40
Debtor(s):
SHELLI D. CROSS Represented By Misty Wilks Martin S Kovalsky
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20
Docket 73
Tentative Ruling for 10/22/20:
Appearances required.
This matter was continued for Debtor to finalize loan modification negotiations.
There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic
8:30 AM
Instructions").
There is no tentative ruling, but Debtor should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 77).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Deepak Sagar Represented By Madhu Kalra
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20
Docket 34
Tentative Ruling for 10/22/20 (same as for 8/27/20):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but Debtors should be prepared to address the issues raised in the Trustee's Comments Or Objection (dkt. 37) and Debtor's belated declaration in response (dkt.41), which appears to have incorrect exhibits attached.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Sara Galvan Represented By
8:30 AM
Trustee(s):
Rebecca Tomilowitz
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/24/20
Docket 34
Debtor(s):
Aaron Scott Brooks Represented By Nima S Vokshori
Joint Debtor(s):
Jamecia Carthaya Brooks Represented By Nima S Vokshori
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/24/20
Docket 50
Tentative Ruling for 10/22/20:
Appearances required.
This matter was continued to allow time for Debtor to provide evidence of a reduction in income arising from COVID-19. There is no tentative ruling, but the parties should be prepared to provide an update on where things stand.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/24/20:
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 55).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
8:30 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Carol Y Espina Represented By Jacqueline D Serrao
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 38
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 07/23/20, 9/24/20
Docket 43
Tentative Ruling for 10/22/20 (same as for 9/24/20):
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (1) the status of Debtor's attempted loan modification, (2) whether, if Debtor is in a trial modification period, this hearing should be continued, (3) alternatively whether, if Debtor has been granted a loan modification, this claim objection is moot, or (4) alternatively whether, if the loan modification was denied, this Court should adopt its tentative ruling from 7/23/20 to deny the claim objection, and whether any such denial should be with or without leave to amend (i.e., with leave to file any new claim objection).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 7/23/20:
Overrule the claim objection for the reasons set forth in the Bank of New York Mellon opposition (dkt. 59). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
8:30 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tausha Suzette Petrotta Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Tentative Ruling for 10/22/20:
Appearances required.
This matter was continued to allow time for the junior lienholder to obtain an appraisal of the subject property. This Court has reviewed the parties' supplemental papers (dkt. 34, 35 & 39).
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Continue to 10/22/20 at 8:30 a.m. to address the following issues. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
8:30 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Appraisal; date of valuation. The junior lienholder has requested (dkt.
22) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
(iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria D. Gomez Represented By
Leroy Bishop Austin
8:30 AM
Joint Debtor(s):
Jose Meneses Represented By
Leroy Bishop Austin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 46
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Cara N. Craig Represented By
Steven B Lever
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
2:00 PM
Docket 0
- NONE LISTED -
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 65
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 313
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20,
10/14/20
Docket 1
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 32
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Katrina Moss Represented By
Barry E Borowitz
Movant(s):
MEB Loan Trust IV, as serviced by Represented By
Austin P Nagel
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 41
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 43).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Renita Yvette Russell Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Represented By Austin P Nagel
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK TRUST, NA vs
DEBTOR
Docket 63
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Carolyn Marjorie Maggio Represented By Chris A Mullen
Movant(s):
U.S. Bank Trust, N.A., as Trustee for Represented By
Christina J Khil
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AJAX MORTGAGE LOAN TRUST 2018-G
vs DEBTOR
Docket 43
- NONE LISTED -
Debtor(s):
Sergio Franco Represented By Jaime A Cuevas Jr.
Movant(s):
Ajax Mortgage Loan Trust 2018-G Represented By
Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING INC
vs DEBTOR
Docket 31
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Although no party in interest has raised the issue whether the automatic stay applies, this Court addresses that issue because it is inherent in determining whether to grant relief from whatever stay allegedly exists.
The tentative ruling is to grant the motion under 11 U.S.C. 362(c)(4) and (j): there is no automatic stay because (a) Debtor's prior cases (#2:19-bk-24394- NB and #2:19-bk-20963-NB) were dismissed (on 12/20/19 and 9/16/19) within one year before this case was filed (on 12/23/19), (b) those dismissals were not under 11 U.S.C. 707(b), and (c) no finding of good faith was timely sought and obtained. The automatic stay has terminated both as to Debtor in personam and as to property of Debtor. Cf. In re Reswick, 446 B.R. 362 (9th Cir. BAP 2011) (interpreting analogous provisions of 11 U.S.C. 362(c)(3)); In re Hernandez, case no. 2:11-bk-53730-NB, docket #40 (Memorandum Decision) (same).
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them,
10:00 AM
and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
10:00 AM
Debtor(s):
Suzanne Coleman Represented By Joseph L Pittera
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
REDWOOD HOLDINGS, LLC
vs DEBTOR
Docket 8
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any
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bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this is a "hijacked" case, and that Debtor is innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)
(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Juan Miranda Pro Se
Movant(s):
Redwood Holdings, LLC Represented By
Amelia B. Valenzuela
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
BANKUNITED N.A.
vs DEBTOR
Docket 30
Debtor(s):
Cintya Gomez Represented By Scott Kosner
Movant(s):
BankUnited N.A. Represented By Bonni S Mantovani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
vs DEBTOR
Docket 36
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marcela Antonio MATEO Represented By
R Grace Rodriguez
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 30
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Jeanette Jefferson Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association, not Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE REO GROUP, INC
vs DEBTOR
Docket 35
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marc Thanh Hoang Represented By Patricia Rodriguez
Movant(s):
The REO Group, Inc. Represented By Coby Halavais
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
MAGUIRE CA PORTFOLIO LLC
vs DEBTOR
Docket 10
Grant in part and deny in part as set forth below because it does not appear that Debtor has any cognizable interest in the subject property, which belongs to the LLC of which Debtor is a member, rather than belonging to Debtor himself. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is no evidence of any transfer of the subject property from the LLC to Debtor (although perhaps the petition implies as much) nor of multiple bankruptcy filings.
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Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Stephan Klein Represented By
Leroy Bishop Austin
Movant(s):
Movant: Maguire CA Portfolio LLC Represented By
Ian Landsberg
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 46
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Richard Eugene Wainwright Represented By Stephen L Burton
Movant(s):
U.S. BANK NATIONAL Represented By Diane Weifenbach Stephen L Burton
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 24
- NONE LISTED -
Debtor(s):
David M Davis Jr. Represented By
Alisa Admiral Garcia
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NA
vs DEBTOR
Docket 45
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
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appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TINDARA MOLLICA, TRUSTEE OF MOLLICA TRUST
vs DEBTOR
Docket 169
Grant as set forth below, despite the lack of compliance with Local Bankruptcy Rule 4001-1(c)(1)(C)(i), requiring service on the Debtor (in addition to service on Debtor's attorney), because in this chapter 7 case it appears that Debtor lacks standing to oppose the motion, and the Chapter 7 Trustee has filed a notice of non-opposition (dkt.175). Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Chapter 7 Trustee's non-opposition (dkt. 175)
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
The New School of Cooking, Inc. Represented By
Crystle Jane Lindsey Daniel J Weintraub James R Selth
Movant(s):
Tindara Mollica, Trustee of Mollica Represented By
Shirlee L Bliss
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
STATE FARM MUTUAL AUTOMATIC INSURANCE
vs DEBTOR
Docket 25
Grant as provided below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Limited relief. Modify and condition the automatic stay under 11 U.S.C. 362(d)(1) such that the movant may proceed in the nonbankruptcy forum to final judgment (including any appeals) in accordance with applicable nonbankruptcy law, subject to the following limitations (Judge Bason's standard limitations).
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and
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scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Additional analysis:
The Bankruptcy Court "shall grant relief from the stay" upon a showing of "cause." 11 U.S.C. 362(d)(1). Such relief need not take the form of a complete termination of the automatic stay, but instead may include "modifying or conditioning such stay." Id.
"'Cause' is determined on a case-by-case basis." In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990). In determining whether "cause" exists to grant relief from the automatic stay to allow a movant to pursue litigation in a non-bankruptcy forum, courts in the Ninth Circuit have examined the factors set forth in In re Curtis, 40 B.R. 795, 799–800 (Bankr.
D. Utah 1984). See In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004). Those factors are: (1) Whether the relief will result in a partial or complete resolution of the issues; (2) The lack of any connection with or interference with the bankruptcy case; (3) Whether the foreign proceeding involves the debtor as a fiduciary; (4) Whether a specialized tribunal has been established to hear the particular cause of action and whether that tribunal has the expertise to hear such cases; (5) Whether the debtor's insurance carrier has assumed full financial responsibility for defending the litigation; (6) Whether the action essentially involves third parties, and the debtor functions only as a bailee or conduit for the goods or proceeds in question; (7) Whether the litigation in another forum would prejudice the interests of other creditors, the creditors' committee and other interested parties; (8) Whether the judgment claim arising from the foreign action is subject to equitable subordination under Section 510(c); (9) Whether movant's success in the foreign proceeding would result in a judicial lien avoidable by the debtor under Section 522(f); (10) The interests of judicial economy and the expeditious and economical determination of litigation for the parties; (11) Whether the foreign proceedings have progressed to the point where the parties are prepared for trial; and (12) The impact of the stay on the parties and the "balance of hurt."
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Plumberex, 311 B.R. at 559. "[W]hile the Curtis factors are widely used to determine the existence of 'cause,' not all of the factors are relevant in every case, nor is a court required to give each factor equal weight." In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011).
Based on the present record, the tentative ruling is that these factors weigh in favor of granting relief as set forth above. Most significantly, relief will result in a complete resolution of the issues and the action essentially involves third parties - movant will seek insurance proceeds against a non- debtor entity.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Francisco J. Cruz Argueta Represented By Jonathan Hidalgo
Movant(s):
State Farm Mutual Automobile Represented By Richard L Mahfouz
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 37
Tentative Ruling for 10/27/20 (same as for 8/18/20):
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Kelvin Lamar Shelton Sr. Represented By Ali R Nader
Movant(s):
U.S. Bank National Association Represented By
10:00 AM
Trustee(s):
Sean C Ferry
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 44
Debtor(s):
Crystal J Winters Represented By Stephen S Smyth
Andrew Edward Smyth
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Tentative Ruling for 10/27/20 (same as 8/18/20):
Appearances required.
At the 8/18/20 hearing, this court was persuaded to continue the matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
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appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 6/30/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Fidel Santiago Gama Sr. Represented By Matthew D. Resnik
Joint Debtor(s):
Yelba R Santiago Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
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Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 26
Debtor(s):
Rosie Kris Ramos Represented By
W. Sloan Youkstetter
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEHBRA & KENT LANDMAN
vs DEBTOR
Docket 8
Tentative Ruling for 10/27/20:
Grant the R/S Motion and authorize Movants to (i) obtain possession of the funds and any valuable contents of the safe deposit box(es) currently being held by the Sheriff and (ii) continue with post-judgment debtor examinations, all for the reasons set forth below. The tentative ruling is also to make such relief effective notwithstanding any future bankruptcy cases. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed: Order shortening time (dkt. 5); Movants’ motion for relief from the automatic stay under 11 U.S.C. 362 (action in nonbankruptcy forum) (dkt. 8, the "R/S Motion") & proof of service (dkt. 11); Debtor’s opposition (dkt. 9); interim order (dkt. 12); Debtor’s supplemental opposition (dkt 18); Movants’ supplemental response (dkt. 27)
Analysis
Movants have interests in the subject property
Movants have provided evidence that they have at least a security interest in, if not outright ownership of, Debtor's bank account(s) and the contents of safety deposit box(es) at Bank of America, N.A. See dkt.8 at PDF p.11, para.6&7. Movants' interests in those things are not entirely free from
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doubt, but Movants have met their prima facie burden to establish their interests.
True, Movants have not cited any authority that a JL-1 recorded on 12/19/16 in the local real estate recorder's office (dkt.11, p.2:10-12 & Ex.A, at PDF pp.8-10) would be effective to create a lien on bank accounts or a safe deposit boxes. Nor have Movants cited authority that any "ORAP" lien that arises automatically from the judgment debtor exam on 10/1/20 (dkt.8, p.12, para.10) is enough, by itself, to extend to such property.
But Movants have presented evidence that the Sheriff took actual possession of such property in or about July of 2020 (dkt.8 at PDF p.11, para.6&7), and Movants have alleged (without dispute by Debtor) that Debtor's claim of exemption was denied by the State Court on 9/23/20. Dkt.8, pp.11-12, para.8-9. The tentative ruling is that the combination of Movants' blanket security interest in all of Debtor's personal property plus constructive possession, through the Sheriff, of the funds and the contents of the safe deposit box, was enough at the very least for Movants' security interest to attach, and more likely enough to transfer actual ownership of that property as early as July 2020 and no later than 9/23/20. See generally In re Hernandez, 483 B.R. 713, passim & n.7 (9th Cir. BAP 2012) (rejecting blanket rule that ownership in bank account passes when funds are in possession of Sheriff, and holding that title to automatically exempt social security deposits was not transferred, but implying that absent such an exemption title transfers to creditor).
Movants' interests would not be adequately protected if the subject
property were returned to Debtor
Assuming for the sake of discussion that Debtor retains any interest in the subject property (i.e., that Movants' interest is a lien, rather than an ownership interest that has cut off any rights Debtor had in the subject property), any return of such property to Debtor would require adequate protection of Movants' interest. See, e.g., 11 U.S.C. 363(e). But there are at least two alternative reasons to conclude that Movants' security interest would not be adequately protected if Movants were required to return the subject property to Debtor (the funds and any valuable contents of the safe deposit box).
First, Movants have a judgment that Debtor committed fraud and other wrongdoing in the past, resulting in a nondischargeable debt of over
$100,000.00 under 11 U.S.C. 523(a)(2), (4) and (6). See dkt.8, Ex.A, at
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pp.14-16, and Ex.C, at pp.22-25. That evidence of prior wrongdoing suggests that, going forward, Debtor cannot be trusted to adequately protect Movants' interest in the subject property.
Second, Movants have presented evidence that Debtor has very substantial monthly income - based on transfers into one bank account - which far exceeds what she has reported. Compare dkt.27, Ex.B, at pp.11-27, with Bankruptcy Schedule I (dkt.19 at PDF pp.22-23) and SOFA
lines 4-5 (alleging $0 income for this year and previous two calendar years). In other words, it appears that Debtor is not complying with her duties to candidly report her income in this bankruptcy case, so the tentative ruling is that, again, she cannot be trusted to adequately protect Movants' interest in the subject property.
The hypothetical possibility that Movants' interests could be avoided, and that Debtor could successfully assert an exemption in the recovered property, is insufficient to overcome Movants' prima facie "cause" for relief from the automatic stay
Debtor has implied that any transfer of an interest in the bank account(s) and safe deposit box(es) would be an avoidable "Preference Payment" (dkt.18, p.5 para.12, p.7 para.26) and that Debtor could avoid the transfer and assert a claim of exemption. Dkt.18, p.6 para.18. But Debtor has not fully articulated her arguments or cited any authority that she has a realistic likelihood of accomplishing those things.
This Court recognizes that such avoidance and a claim of exemption are theoretically possible. See generally 11 U.S.C. 522(f)-(h) & 547(b). But that conceptual possibility is a far cry from actually establishing those things, and Movants may well have defenses. See, e.g., 11 U.S.C. 522(g)(1)(B) (no exemption if Debtor concealed property), 547(b)(4)(A) (transfer must be within 90 days prior to petition date).
In addition, the expense of litigating not only any avoidance issues but also any exemption issues appears likely to outweigh any net benefit to Debtor or the bankruptcy estate. Given that proceedings regarding relief from the automatic stay are supposed to be "summary" proceedings (In re Veal, 450 B.R. 897, 914-15 (9th Cir. BAP 2011)), the tentative ruling is that Debtor's mere hints at possible grounds to avoid the transfer and successfully assert an exemption in the subject property are not enough to overcome Movants' prima facie showing of "cause" (within the meaning of 11 U.S.C. 362(d)(1)) for relief from the automatic stay to enforce their security interest.
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Conclusion
For the reasons set forth above, the tentative ruling is to grant the following relief. See also, e.g., In re Tucson Estates, Inc., 912 F.2d 1162, 1166 (9th Cir.1990) ("cause" determined on case-by-case basis); In re Kronemeyer, 405 B.R. 915 (9th Cir. BAP 2009); In re Landmark Fence Co., Inc., 2011 WL 6826253 at *4 (C.D. Cal. Dec. 9, 2011); In re Plumberex Specialty Prods., Inc., 311 B.R. 551, 559–60 (Bankr. C.D. Cal.2004); In re Curtis, 40 B.R. 795, 799–800 (Bankr. D. Utah 1984) (useful factors when considering relief from automatic stay to pursue nonbankruptcy litigation).
Limited relief. Modify and condition the automatic stay under 11
U.S.C. 362(d)(1) such that Movants may (i) obtain possession of the funds and any valuable contents of the safe deposit box currently being held by the Sheriff and (ii) continue with post-judgment debtor examinations.
No enforcement against property of the bankruptcy estate. The stay remains in effect with respect to enforcement of any judgment against property of the debtor's bankruptcy estate - any such property shall be distributed when and how provided by the Bankruptcy Code. Nevertheless, the movant is permitted to enforce its final judgment by (i) collecting upon any available insurance in accordance with applicable nonbankruptcy law or (ii) proceeding against the debtor as to any property that is not property of this bankruptcy estate. See, e.g., 11 U.S.C. 362(b)(2)(B) & 541(b)(7) (collection of domestic support obligations from ERISA qualified retirement plans).
Claim allowance, priority, and discharge issues. Any claims arising from the nonbankruptcy litigation are subject to this Bankruptcy Court's jurisdiction regarding claim allowance and priority, and the existence and scope of any bankruptcy discharge.
No relief in other bankruptcy cases. To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
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Grant the following relief pursuant to the legal analysis in In re
Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (regarding authority to grant
"in rem" relief apart from under 11 U.S.C. 362(d)(4)):
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/6/20:
Appearances required. There is no tentative ruling. The parties are directed to address (1) shortening time (see OST, dkt.5) and (2) the merits of the motion (dkt.7).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Dedra M Chachere-Hunt Represented By Kahlil J McAlpin
Movant(s):
Dehbra & Kent Landman Represented By Selena Rojhani
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 53
Tentative Ruling for 10/27/20:
Appearances required.
At the hearing on 9/1/20, this Court was persuaded to continue the matter and directed Movant to give notice by 9/4/20. As of the preparation of this tentative ruling, no notice is on file. Why not?
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required.
10:00 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose A. Vallejos Represented By Donald E Iwuchuku
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 99
Tentative Ruling for 10/27/20:
Appearances required.
At the hearing on 9/1/20, this Court was persuaded to continue the matter and directed Movant to give notice by 9/4/20. As of the preparation of this tentative ruling, no notice is on file. Why not?
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of a loan modification agreement and/or (c) whether they will agree to the terms of a forbearance agreement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to
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appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Catherine Mueller Represented By
Alisa Admiral Garcia
Movant(s):
Deutsche Bank National Trust Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NATIONAL ASSOC
vs DEBTOR
Docket 34
Debtor(s):
Martha Sandra Gutierrez Represented By
James D. Hornbuckle
Movant(s):
Wells Fargo Bank, National Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Tentative Ruling for 10/27/20:
Appearances required.
This matter was continued from 9/15/20 to allow time for the parties to review their accounting records. There is no tentative ruling, but the parties should be prepared provide an update on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free
10:00 AM
through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 51).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Edgar Pineda Rios Represented By Theresa Hana
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu Gilbert R Yabes James F Lewin
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 36
Tentative Ruling for 10/27/20:
Appearances required.
This matter was continued from 9/15/20 to allow time for the parties to finalize negotiations for an adequate protection order. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties
10:00 AM
who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This matter was continued to this date to allow time for the parties to review their accounting records. There is no tentative ruling, but the parties should be prepared to provide an update on the status of those efforts.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aura Marina Figueroa Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 37
Tentative Ruling for 10/27/20:
Appearances required.
At the 9/15/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
10:00 AM
appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/28/20 hearing, this Court was persuaded to continue this matter for a possible forebearance agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) whether they will agree to the terms of a forebearance agreement (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
10:00 AM
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Movant(s):
CARRINGTON MORTGAGE Represented By
Diana Torres-Brito Julian T Cotton
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 34
Debtor(s):
Vivian Louise Tann Represented By Andrew Moher
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 78
Tentative Ruling for 10/27/20:
Appearances required.
At the 8/18/20 hearing, this Court was persuaded to continue this matter based on the debtor's participation in the Loan Modification Management Pilot Program. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20 (same as for 7/14/20 and 5/19/20 except for CourtCall deadline in brackets):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact
10:00 AM
CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [9/30/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 82).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association Represented By Matthew R. Clark III Sean C Ferry
April Harriott Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01164 Krasnoff v. Hernandez
550; (3) Automatic preservation of avoided transfer pursuant to 11 U.S.C. section 551; and (4) Unjust enrichment/restitution
Docket 1
Appearances required.
This Court has reviewed the parties' joint status report (adv. dkt. 7) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014)
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(authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to set a deadline of 11/10/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 7/24/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 12/30/20 deadline. Discovery cutoff (for completion of discovery): 1/15/21 Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 3/2/21 Joint Status Report: 2/18/21.
Continued status conference: 3/2/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
11:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Armando Hernandez Represented By Jesus L Zuniga
Defendant(s):
Erick Hernandez Pro Se
Joint Debtor(s):
Rita Hernandez Represented By Jesus L Zuniga
Plaintiff(s):
Brad D. Krasnoff Represented By Rosendo Gonzalez
Trustee(s):
Brad D Krasnoff (TR) Represented By Rosendo Gonzalez
11:00 AM
Docket 379
Grant as set forth below, subject to overbids at the hearing and to Wells Fargo Bank, N.A.'s non-opposition (dkt. 385). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Wells Fargo Bank, N.A.'s non-opposition (dkt. 385)
Analysis: The tentative ruling is to grant the sale motion and authorize a sale free and clear (11 U.S.C. 363(b) & (f)), subject to overbids.
In addition, the tentative ruling is to grant the request for a "good faith" finding (11 U.S.C. 363(m)) if Cao-Zhao is the successful bidder and, alternatively, subject to the successful bidder or backup bidder filing declaration(s) providing sufficient evidence of such good faith (see the posted Procedures of Judge Bason, available at www.cacb.uscourts.gov).
In addition, the tentative ruling is to grant the Trustee's request for authorization to pay Debtors' homestead exemption to Debtors, in full satisfaction of Debtors' claimed homestead exemption, as soon as practicable after (a) the Trustee's receipt of the funds and (b) establishment by Debtors
11:00 AM
of a segregated account that has procedures established to prevent withdrawal of the funds unless those funds are used solely for the purchase of a replacement homestead (e.g., if Debtors establish a "blocked" account from which funds can only be withdrawn pursuant to an order of this Court, which presumably would authorize disbursement to an escrow agency for closing on the purchase of a replacement homestead). If Debtors do not provide written proof to the Trustee of such use of the homestead funds within six months of their receipt, the Trustee may move to deem Debtors' homestead exemption forfeited and demand the return of the funds.
The tentative ruling is also to grant the request to waive the 14-day stay provided by Rule 6004(h) (Fed. R. Bankr. P.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By
11:00 AM
Ashleigh A Danker
11:00 AM
Docket 29
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): No opposition is on file
Reason for granting: This Court deems Claimant's failure to oppose the claim objection as consent to granting the relief requested therein. See LBR
9013-1(h).
Lack of cost/benefit analysis: The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
The Trustee is cautioned that failure to include a cost/benefit analysis in
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future claim objections in accordance with the posted Procedures may result in adverse consequences.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Advanced Care Animal Hospital, Represented By
Mark T Young
Trustee(s):
Sam S Leslie (TR) Pro Se
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Docket 271
Tentative Ruling for 10/27/20:
Grant. Appearances required.
Current issues
Background
Debtor filed a voluntary chapter 11 case on 4/11/19. On 8/8/19, this Court entered an order converting the case to chapter 7 (dkt. 95). Sam S. Leslie is the Chapter 7 Trustee ("Trustee").
Trustee’s first request for turnover of the Property
As part of the Trustee’s efforts to administer Debtor’s estate, the Trustee sought an order (i) compelling Debtor and any third parties in possession of Debtor’s residence located at 1704 Stone Canyon Road, Los Angeles, CA 90077 ("Property") to turnover the Property and (ii) authority to employ real estate brokers to assist the Trustee in marketing and selling the Property, among other things (dkt. 127, the "First Turnover Motion").
On 11/7/19, this Court entered an order granting the First Turnover Motion in part, and setting a continued hearing and supplemental briefing deadlines (dkt. 136, "First Turnover Order"). Pursuant to the First Turnover Order, Debtor was permitted to continue occupying the Property, provided that she pay the expenses related to maintaining the Property and cooperate with the Trustee’s efforts to investigate existing liens and obtain an appraisal of the Property to facilitate a possible sale of the Property.
On 12/13/19, the Trustee and Debtor filed a stipulation resolving the First Turnover Motion (dkt. 153), which this Court approved (dkt. 156).
Trustee’s employment of real estate brokers to market the Property
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On 2/27/20, the Trustee sought authority to employ Rodeo Realty as
his real estate brokers to market and sell the Property (dkt. 162, "Broker Employment Application"). Debtor opposed the motion (dkt. 163) and the Trustee filed replies (dkt. 158, 169). After consideration of oral arguments, this Court overruled Debtor’s opposition and granted the Broker Employment Application (dkt. 177).
Trustee’s second request for turnover of the Property
On 7/8/20, the Trustee filed a "Motion for Order (1) Compelling Debtor Zeta Graff and Those in Possession With Her to Turnover Property of the Estate; and (2) Authorizing Trustee to Utilize the Services of the United States Marshals to Enforce Court Order (dkt. 212, "Second Turnover Motion").
Among other things, the Second Turnover Motion described a considerable period of alleged non-cooperation by Debtor, including her alleged refusal to cooperate with the Trustee’s brokers to market and show the Property and failure to pay insurance resulting in a lapse in coverage (Id.).
On 7/14/20, Pensco Trust Company, FBO Elizabeth S. Boren, IRA filed its joinder in the Turnover Motion (dkt. 226). On 7/23/20 Debtor filed her opposition (dkt. 226), and on 7/23/20 and 7/24/20 Debtor filed her supplemental oppositions (dkt. 233, 240). On 7/28/20, the Trustee filed a reply (dkt. 242) and an objection to and request to strike Debtor’s late filed oppositions (dkt. 243). The Second Turnover Motion was self-calendared for hearing on 8/4/20 at 11:00 a.m.
In advance of the hearing on the Second Turnover Motion, this Court posted a tentative ruling indicating its intent to grant the Second Turnover Motion in its entirety. After consideration of oral arguments, this Court adopted the tentative ruling as the final ruling.
On 8/6/20, this Court entered its "Order Granting Chapter 7 [Trustee’s] Motion for Order (1) Compelling Debtor Zeta Graff and Those in Possession With her to Turnover Property of the Estate; and (2) Authorizing Trustee to Utilize Services of the United States Marshals to Enforce Court Order" (dkt.
248, the "Second Turnover Order"). That same day, the Trustee filed and served notice of this Court’s entry of the Second Turnover Order on the Debtor (dkt. 249).
On 8/19/20, the Trustee filed a copy of the Writ of Execution for Possession of Real Property issued by the Clerk of the Bankruptcy Court (dkt. 256).
Debtor did not timely appeal the Second Turnover Order and that order
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is now final.
Trustee’s motion for issuance of order to show cause ("OSC") re contempt, and issuance of OSC
On 9/10/20, the Trustee filed his "Motion of Chapter 7 Trustee for Order to Show Cause Why Debtor Zeta Graff Should Not be Held in Contempt for Violating This Court’s ‘Order Granting Chapter 7 [Trustee’s] Motion for Order (1) Compelling Debtor Zeta Graff and Those in Possession With her to Turnover Property of the Estate; and (2) Authorizing Trustee to Utilize Services of the United States Marshals to Enforce Court Order’" (dkt. 267, 269 the "Sanctions Motion"). Debtor did not oppose the Sanctions Motion.
On 9/18/20, this Court issued the requested OSC (dkt. 271). The OSC directs Debtor to appear telephonically at a hearing on October 27, 2020 at 11:00 a.m. to show cause why this Court should not enter an order pursuant to Rules 7070 and 9020 (Fed. R. Bankr. P.) that holds her in civil contempt for violating the Second Turnover Order and imposes compensatory and coercive sanctions against her, payable from any surplus proceeds from the sale of the Property and/or the denial of Debtor’s discharge pursuant to 11
U.S.C. § 727(a)(6) and/or (7) (Id.).
The OSC also directs Debtor to file a response by no later than 10/13/20 that, among other things, attaches "admissible evidence, if there is an explanation, why she should not be held in contempt and sanctioned for failing to turn over possession of the Property to the Trustee as and when required by this Court’s [Second] Turnover Order" (dkt. 271, p.2:19-22). As of the preparation of this tentative ruling, Debtor has not filed a written response to the OSC.
The Trustee reports (dkt.279) that Debtor has emailed him, and the copies of the emails include Debtor's assertions that (as of her 9/17/20 email) she is "very sick still" and (according to her 10/21/20 email) "I have obeyed the judge['s] order and have evacuated weeks before the 8/20/20 deadline." Id., Ex.1, at PDF p.4. Debtor does not offer any explanation why, if she actually had "evacuated" in the time frame she asserts (contrary to the Trustee's evidence that the Property was still occupied), she did not notify the Trustee at that time, turn over keys, and otherwise deliver possession of the Property, free of any exempt personal property including furniture and furnishings, as required by this Court's order (dkt.248).
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Contempt and Sanctions
For the reasons set forth in the Trustee’s Sanctions Motion (dkt. 267), and the additional reasons set forth above, the tentative ruling is to hold Debtor in contempt of this Court and impose sanctions as set forth below.
Legal standards
Bankruptcy courts have the authority to impose civil contempt sanctions under 11 U.S.C. 105(a). In re Dyer, 322 F.3d 1178, 1189-90 (9th Cir. 2003). "The standard for finding a party in civil contempt is well settled: The moving party has the burden of showing by clear and convincing evidence that the contemnors violated a specific and definite order of the court." Dyer, 322 F.3d at 1191. "The burden then shifts to the contemnors to demonstrate why they were unable to comply." F.T.C. v. Affordable Media, 179 F.3d 1228, 1239 (9th Cir. 1999). "A person fails to act as ordered by the court when he fails to take all the reasonable steps within his power to ensure compliance with the court's order." Rosales v. Wallace (In re Wallace), 490 B.R. 898, 905 (9th Cir. BAP 2013).
Contempt
In support of the Sanctions Motion, the Trustee submitted a copy of the Second Turnover Order (dkt. 267, PDF pp.23-25) which states, among other things, that:
All persons in possession, including but not limited to the Debtor, are ordered to vacate the Property not later than fourteen (14) days after entry of this Order.
The Debtor and all persons in possession or occupancy with her shall (i) vacate and turn over possession of the Property to the Trustee and (ii) cause all of their claimed exempt personal property, including without limitation household furniture, furnishings and [sic] to be removed from the Property [Id., PDF p.24:27-25:4, emphasis added]
The Trustee also attaches evidence establishing that Debtor has willfully failed to vacate the Property by August 20, 2020 as required by the Second Turnover Order (Leslie Decl., ¶¶ 5&6).
Based on the foregoing, the tentative ruling is that the Second Turnover Order is definite and specific and the Trustee has met his prima facie burden of showing by clear and convincing evidence that Debtor has
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violated the Second Turnover Order by failing to vacate and deliver possession of the Property to the Trustee by August 20, 2020. The tentative ruling is also that the burden shifted to Debtor to demonstrate why she was unable to comply with the Second Turnover Order and she has not established that she took all reasonable steps within her power to ensure compliance with that order.
Accordingly, on this record, this the tentative ruling is to find Debtor in contempt of this Court and impose sanctions as set forth below.
Compensatory Sanctions
In view of this Court’s tentative finding that Debtor has willfully failed to comply with the Second Turnover Order, the tentative ruling is to grant the Trustee’s request for compensatory sanctions. Therefore, the tentative ruling is to conduct a hearing on 12/1/20 at 11:00 a.m. to determine the appropriate amount of compensatory sanctions.
If the foregoing tentative ruling is adopted, the Trustee is directed to submit a supplemental declaration setting forth all fees and expenses the estate has incurred, and any other compensation the Trustee seeks, as a result of Debtor’s failure to comply with the Second Turnover Order, including without limitation any charges for occupancy of the premises, insurance, and any expenses of removing personal property and restoring the premises to "broom clean" condition, by November 10, 2020. The deadline for Debtor to submit a response is November 17, 2020, and the deadline for any reply by the Trustee is November 24, 2020. The Trustee is directed to lodge a scheduling order within 1 day after this hearing.
Coercive Sanctions
Debtor's emails attached to the Trustee's status report (dkt.279, Ex.1) are not persuasive, for multiple reasons. They are were not properly filed with this Court (as required by the OSC); they were not timely (by the deadline set in the OSC); they are not in the form of a declaration under penalty of perjury, and are not otherwise admissible in evidence; and they are unclear - it is uncertain what Debtor means when she asserts that she has "evacuated" the Property (she does not assert that she turned over keys, nor does she affirm that she actually has moved herself, her exempt personal property, and her dogs out of the Property and has ceased using it, all contrary to the Trustee's evidence), and it is uncertain what she means when she asserts that she has complied with this Court's orders (which seems to be inconsistent with her prior assertions that she had excuses for not complying with this Court's
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orders, including alleged illness).
Nevertheless, at some point either Debtor will have turned over keys to the Property, and otherwise will have complied with the Second Turnover Order, or alternatively the Trustee, aided by the U.S. Marshal if necessary, will have taken possession of the Property, removed any personal property left at the premises, cleaned the premises, etc. The tentative ruling is that, until there is evidence that those things have happened, it is appropriate to impose coercive sanctions against Debtor, in the amount of $500 per day.
The tentative ruling is that, although Debtor was required by the Second Turnover Order to turn over possession on 8/20/20, the coercive sanctions cannot run from that date because such sanctions would be punitive, not coercive, and this Bankruptcy Court generally lacks the authority to impose punitive sanctions. But once the Trustee filed and served the motion for contempt sanctions, on 9/10/20, Debtor was on notice that the Trustee sought coercive sanctions of $500 per day. See dkt. 267, p.8:25-9:2. Therefore, the tentative ruling is that the coercive sanctions of $500 per day should run from 9/10/20 and continue until Debtor has delivered to the Trustee the keys to the Property and has otherwise fully complied with the Second Turnover Order.
Given the evidence of Debtor’s lack of any meaningful effort to comply with the Second Turnover Order, the tentative ruling is that this Court must find that imposition of coercive sanctions is the only way to ensure that the Trustee will be able to perform his duties and administer the Property for the benefit of the estate.
Denial of discharge
The tentative ruling is to deny, without prejudice, the Trustee’s request for denial of Debtor’s discharge under 11 U.S.C. § 727(a)(6) or (7) because Rule 7001(4) (Fed. R. Bankr. P.) requires the filing of an adversary proceeding complaint to obtain such relief.
Other relief
The tentative ruling is to retain jurisdiction under the OSC to grant additional relief, depending on future developments. For example, although the Trustee already has this Court's authorization to obtain the assistance of the U.S. Marshal, it might be necessary to obtain authorization for additional measures to address how to care for Debtor's dogs if they remain on the premises; or it might be necessary to increase or decrease the dollar amount of future daily coercive sanctions; etc.
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Proposed order: The Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Zeta Graff Pro Se
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by debtor's principal.
Current issues
Untimely status report & no proofs of service of status report or procedures order
This Court's order setting principal status conference and setting various procedures (the "Procedures Order," dkt. 2) required Debtor to serve that order on all parties in interest and file a proof of service at least 14 days before the principal status conference. As of the preparation of this tentative ruling, no proof of service is on file.
The Procedures Order also directed Debtor to file a status report using Local Form F 2081-1.1.C11.STATUS.RPT, serve it on all parties in interest, and file a proof of service at least 14 days before the principal status conference. On 10/15/20, Debtor belatedly filed a status report, but the proof of service is blank.
Accordingly, the tentative ruling is to set a deadline of 10/30/20 for Debtor to file and serve a Notice, with copies of the Procedures Order and Status Report attached as exhibits, informing all parties that "Debtor failed to serve the Procedures Order and Status Report on all parties in interest as directed by the Bankruptcy Court, which may have prejudiced some parties. The Bankruptcy Court has directed Debtor to serve this Notice, with copies of the Procedures Order and Status Report, on all parties in interest, to inform all parties of the procedures in the Procedures Order and Debtor's progress in this case to date, and so that any party who was prejudiced by the lack of earlier notice has an opportunity to seek any appropriate relief."
In addition, Debtor is cautioned that failure to comply with this Court's orders in future, or other failure to abide by Debtor's obligations, may result in adverse consequences.
Budget motion
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Debtor's status report states that a budget motion is not required by
the presiding judge's procedures. Dkt. 13, p.3. That is wrong (see posted Procedures of Judge Bason, available at www.cacb.uscourts.gov), and Debtor is cautioned not to misstate this Court's procedures.
Nevertheless, the tentative ruling is to direct Debtor to appear to address whether this Court should excuse the requirement of a budget motion, in view of Debtor's representations in the status report that give the appearance that Debtor is not operating.
"Corporate" ownership statement, and resolution
Debtor asserts (dkt.13, p.2, item A.3.) that the above-referenced documents are not required because Debtor is a partnership, not a corporation. That is wrong. The Bankruptcy Code defines "corporation" to include a "partnership ...." 11 U.S.C. 101(9)(A)(ii). The tentative ruling is to set a deadline of 10/30/20 for Debtor to file those things.
Deadlines/dates. This case was filed on 9/30/20.
Bar date: 12/15/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.2 (no proof of service as of the preparation of this tentative ruling)
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
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Debtor(s):
Bethany Senior Housing II, LP Represented By Simon J Dunstan
1:00 PM
Docket 48
Appearances required by counsel for the debtor and by the debtor himself.
Current issues
First-day motions
The tentative ruling is to set a deadline of 10/30/20 for Debtor to file (i) local form F 2014-1 in support of counsel's employment application (dkt.60) and (ii) a budget motion, both of which are required by the posted "Procedures of Judge Bason" (available at www.cacb.uscourts.gov).
Bar date
There is some confusion about the bar date in this case. This case was commenced under chapter 13 and a notice was sent to creditors (dkt.10, p.2, line8) that the bar date was 7/20/20. On 9/24/20 this Court issued an order (dkt.44) converting this bankruptcy case from chapter 13 to chapter 11. On 10/1/20 this Court issued a notice stating that notice of the deadline to file proofs of claim would be "sent at a later time." Dkt.50, line 7 (emphasis added), and dkt.53 (proof of service). Nevertheless, the docket text for that notice (not the notice itself, but the summary of the notice on this Court’s docket) states, "Proofs of Claims due by 2/2/2021." Dkt.50 (emphasis added).
The tentative ruling is that conversion from chapter 13 to chapter 11 does not have the effect of re-setting the deadline to file proofs of claim, with the possible exception of claims for postpetition, pre-conversion claims (the "Pre-Conversion Period"). The tentative ruling is to issue an order substantially in the form of an order in a different case, setting a deadline of 2/2/21 for any person asserting that the 7/20/20 bar date does not apply to them (or 11/9/20 for governmental units) to file a motion and supporting papers, and direct Debtor to serve that order on (i) all persons with whom Debtor had any transactions during the Pre-Conversion Period and (ii) all persons on the creditor Matrix. See In re Lara & Calva (Case No. 2:19-
bk-14078-NB), dkt.66.
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Deadlines/dates. This case was filed on 5/11/20, and converted to chapter 11 on 9/24/20 (dkt. 44).
Bar date: see above.
Procedures order: dkt. 48 (timely served, dkt. 52)
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Mario Jacquette Howard Represented By Michael R Totaro
1:00 PM
Docket 57
Please see the tentative ruling for the status conference (Calendar No. 4, 10/27/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
United States Trustee's motion to dismiss, convert or appoint a chapter 11 trustee (dkt. 58, "MTD"), Debtor's opposition (dkt. 70), UST's reply (dkt. 71)
There is no tentative ruling, but the parties should be prepared to address the issues raised in the MTD.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
AmPlan (dkt. 54)/AmDisclosure Statement (dkt. 55)*: Confirmation hearing is scheduled for 11/10/20 at 1:00 p.m. (dkt. 59)
Continued status conference: 11/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
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COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 214
- NONE LISTED -
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20, 7/28/20, 8/18/20, 9/1/20, 10/6/20
Docket 1
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Debtor's Disclosure Statement ("D/S," dkt. 226) and exhibits (dkt.235), Plan of reorganization ("Plan," dkt. 227) and exhibits (dkt.236), and request for judicial notice ("RJN," dkt.239)
Debtor apparently intends to sell some properties, cure arrears on others, and pay tax debts and other claims over 24 months, with a 100% dividend to all creditors. See D/S, Ex.I (dkt.235). But on its face the Plan appears to be infeasible, and its cash flow is unclear.
Cash flow
Exhibit C to the D/S (dkt.235 at PDF p.4) shows $8,000.00 income and
$6,108.98) expenses, for net monthly income of $1,891.02, as against monthly Plan payments of over $31,000 (id.), for a monthly deficit of over
$29,000. Id. This appears to show that the Plan is infeasible on its face. In addition, there are several other problems with this alleged cash flow.
First, although Exhibit C to the D/S references bankruptcy Schedules I and J, the space to provide a docket reference is blank. Presumably Debtor is referring to docket no. 18, at PDF pp.24-28.
Second, contrary to the instructions on Bankruptcy Schedule I, line 8a, Debtor has not attached "a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Dkt.18, at PDF p.25. Nor has Debtor used Exhibits C1 through C3 for that purpose. See dkt.235, at PDF pp.5-7.
Debtor's Plan Exhibit B (dkt.236 at PDF p.9) and his Bankruptcy Schedule G (dkt.18 at PDF p.22) list no renters/leases to be assumed (perhaps because all renters are month-to-month, or perhaps because some rental units are
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unoccupied, but either way there is no information about this alleged source of income). The upshot is that creditors (and this Court) have no information about Debtor's proposed source of funding for the Plan.
Third, despite the instructions to make adjustments to avoid "double- counting" (dkt.235, at PDF p.7, line 3), Debtor has not made any adjustments. It is unclear whether Debtor's payment on the first mortgage on his home residence (listed in Bankruptcy Schedule J at $3,808.98 per month, dkt.18, at PDF p.26, line 4) is or is not duplicative of the dollar amounts proposed to be paid going forward. See Plan Ex.A (dkt.236, at PDF p.4) and RJN, Ex.3 (dkt.239 at PDF pp.40-46). Nor is it clear how Debtor is accounting for any other ongoing monthly payments: Debtor's Plan appears to include only cures of arrears, not any accounting on ongoing monthly payments. See Plan Ex.A (dkt.236 at PDF pp.4-5), D/S Ex.C (dkt.235 at PDF p.4), and Bankruptcy Schedule J (dkt.18 at PDF pp.26-27).
Start again
The tentative ruling is to direct Debtor and his counsel to use the existing forms of Plan and D/S but replace the existing exhibits with new exhibits that, in addition to a liquidation analysis and other necessary components, show clearly and in detail (x) all monthly sources of income, (y) all monthly payments to creditors (whether those payments are ongoing, regular payments or payments on arrears or payments on restructured debts or something else), and (z) all one-time payments and the sources thereof. Those exhibits need not be on Local Forms F 3018-1 but they must be in a spreadsheet that performs the calculations, and they must be accurate and clear. A variation on Debtor's Exhibit "I" (dkt.235, last pages) might be sufficient if it were to show ongoing regular monthly payments, monthly payments of arrears, the interest rate, the term, etc. The tentative ruling is to set a deadline of 11/17/20 for Debtor to file those documents (but NOT serve them, except on the UST and any parties requesting a copy).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: See above.
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 528
- NONE LISTED -
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 526
Please see the tentative ruling for the status conference (Calendar No. 9, 10/27/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20, 9/15/20
Docket 323
Tentative Ruling for 10/27/20:
Continue as set forth below. Appearances are not required on 10/27/20.
Current issues
Trustee's motion to settle with Dominguez Firm, LLP re Mora v. Hernandez attorneys fees (dkt. 526), no opposition is on file
Grant the motion.
Proposed order: Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 11/10/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 385
Please see the tentative ruling for the status conference (Calendar No. 11, 10/27/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
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fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20, 9/1/20, 9/29/20,
10/6/20
Docket 1
Tentative Ruling for 10/27/20:
Continue as set forth below. Appearances are not required on 10/27/20.
Current issues
E&W Consulting, LLC's ("Applicant") third interim fee application (dkt. 385, 390 "Application"), declaration of Cristina Sun (dkt. 395), no opposition is on file
The tentative ruling is to grant the Application and approve interim fees of $167,835 and $0 in expenses, for a total award of $167,835.
The tentative ruling is also that Applicant is cautioned that this Court may reduce future requests for fees if Applicant's billing sheets continue to contain substantial lumping (or block billing) of services in violation of the UST's Fee Guidelines (see, e.g., dkt. 385, PDF p.33-36).
Proposed order: Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 (Order dkt. 97, timely served, dkt.101).
Procedures order: dkt.18 (timely served, dkt. 25)
AmPlan (dkt. 405)/AmDisclosure Statement (dkt. 406)*: Confirmation hearing 12/8/20 at 1:00 p.m. (dkt. 410)
Continued status conference: 12/8/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
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Docket 186
Please see the tentative ruling for the status conference (Calendar No. 13, 10/27/20 at 1:00 p.m.).
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
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12/17/19, 1/14/20, 2/4/20, 3/3/20, 6/2/20, 8/18/20,
9/29/20
Docket 1
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Amended disclosure statement (dkt. 186), Amended plan of reorganization (dkt. 188), order setting hearing (dkt. 189), proof of service of voting package (dkt. 192), Fabian Angulo opposition (dkt. 206), Joseph Frugard opposition (dkt. 207), ballot summary (dkt. 210), Debtor's reply (dkt. 211)
There is no tentative ruling. Mr. Angulo and Mr. Frugard need to state their objections with more specificity and tie them to specific provisions of the Bankruptcy Code because the burden is not on the Court or the Debtor to make their objections for them. The parties should be prepared to address whether this Court should continue the hearing, strike the objections and confirm the plan, or take some other action.
Deadlines/dates. This case was filed on 6/1/19.
Bar date: 9/6/19 (timely served 7/18/19, dkt. 31, 32)
Procedures order: dkt. 3 (timely served 6/18/19, dkt. 16).
AmPlan/AmDisclosure Statement*: see above
Post-confirmation status conference: If this Court is persuaded to confirm the plan, this Court will set a post-confirmation status conference for 3/2/21 at 1:00 p.m. Brief status report due 2/16/21.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Unified Protective Services, Inc. Represented By
Michael Jay Berger
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Docket 145
Please see the tentative ruling for the status conference (Calendar No. 16, 10/27/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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fr. 6/30/20, 8/18/20
Docket 121
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 16, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 8/18/20 at 1:00 p.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Docket 5
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Doz Cabezas Properties, LLC's ("Dos Cabezas") motion to dismiss case (dkt. 145, 166), Debtor's opposition (dkt. 168), Dos Cabezas's reply (173)
The tentative ruling is to deny the motion without prejudice on the grounds that this Court is not persuaded that, on the present record, sufficient "cause" exists under 11 U.S.C. 1112(b)(4) to convert or dismiss this case.
First, litigation takes time and Dos Cabezas has not presented sufficient evidence to persuaded this Court that Debtor is not diligently prosecuting this bankruptcy case and the State Court action. To the contrary, Debtor's prosecution of this case appears to be reasonable in light of the uncertainty and challeges presented by COVID-19, the resulting backlog in state courts, and the great deal of latitude afforded to debtors exercising their business judgment about matters of case administration.
Second, Dos Cabezas' reliance on In re Popp, 323 B.R. 260, 268 (9th Cir. BAP 2005), and In re Owens-Johnson, 118 B.R. 780 (Bankr. S.D. Cal.
1990), is not dispositive. True, it is likely that Debtor's anticipated motion to sell the subject property will be subject to objections based on arguments that
(i) Debtor cannot sell what it does not own and (ii) a sale under 11 U.S.C. 363(b) and (f) should not, or cannot, be used to defeat a claim for specific performance. But (x) this Court cannot presume, in advance, that those anticipated objections will prevail, (y) even if a sale were blocked, Debtor has other options (e.g., proposing a plan of reorganization, or waiting until a determination in the State Court litigation that Debtor has an ownership interest in the subject property, and therefore can sell it), and (z) even if all of
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those things were to turn out in future not to be viable options, it is premature to dismiss this case based on that future possibility.
Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, Michael Criscione and Michael Meyer’s ("Movants") omnibus objection to proofs of claim (dkt. 121, "Claim Objections") 4-1/4-2, 6-1, 7-1, 8-1, 9-1, 10-1, 11-1, 12-1, 13-1, 14-1, 15-1, 16-1, 17-1, 18-1, 19-1, 20-1, 22-1, 23-1/23-2,
24-1, 25-1, 26-1, 27-1, 29-1, 31-1, 32-1, 33-1, 34-1, 35-1, 36-1 and 37-1 ("the
Claims"), stipulation & order continuing hearing (dkt. 129, 131), Tarzana Crossing, a Merchant Faire, LLC’s ("Tarzana Crossing") opposition (dkt. 137), no reply is on file
Appearances required. At the hearing on 8/18/20 this Court was persuaded to continue this matter, rather than adopt the tentative ruling (reproduced below). The parties should be prepared to address the issues set forth in that tentative ruling and their filed papers.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 12/8/20 at 1:00 p.m. Brief status report due 11/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
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Current issues
Debtor's application to employ Colliers International Greater Los Angeles, Inc., dba Colliers International ("Colliers") (dkt. 138-140, 142, the "Employment Application"), Criscione-Meyer Parties' opposition (dkt. 144), Tarzana Crossing's opposition (dkt. 146, 149), Debtor's replies (dkt. 150, 151, 152, 157)
The tentative ruling is (i) to overrule the objections for the reasons stated in Debtor's reply papers (except to the extent of Debtor's and Colliers' accession to the 6-month term in Debtor's reply papers) but (ii) to prohibit dual agency as set forth below. The "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov) provide notice that Judge Bason's standard employment order prohibits dual agency, and refer to an explanation of the problems with dual agency as set forth in another case. See In re Ebuehi, Case No. 2:18-bk-20704-NB, dkt. 281, at PDF pp.9-10). Nothing in the Employment Application provides any reason to depart from that policy.
Notwithstanding the foregoing, the tentative ruling is that the dangers inherent in dual agency are substantially ameliorated if (i) the individual(s) who represent the bankruptcy estate as seller operate out of a different branch office from the office of any individual(s) who represent prospective buyers and (ii) the compensation structure is structured in a way that does not implicate the concerns raised in Ebuehi. The tentative ruling is that, if Debtor and Colliers with to attempt to meet these conditions, then this Court will set a deadline of 9/22/20 to file declaration(s) addressing these conditions (including a detailed disclosure of the compensation structure), and serve such declarations on the United States Trustee and all parties in interest who attend this hearing. Alternatively, if they do not wish to pursue that alternative, the tentative ruling is to condition any approval of the Employment Application on an absolute bar on any dual agency - i.e., no person at Colliers may represent any prospective buyer.
Proposed order: If this matter is not continued, and this Court is
persauded to grant the Employment Application immediately, Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20:
Sustain the claim objections and continue the Status Conference as set forth below. Appearances required as to the Status conference, but not as to the claim objections. If you wish to dispute the tentative ruling as to the claim objections, you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Omnibus claim objection ("Claim Objection," dkt.121) by Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, Michael Criscione
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and Michael Meyer’s ("Claim Objectors"); stipulation & order continuing hearing (dkt. 129, 131); opposition (dkt.137) of Tarzana Crossing, a Merchant Faire, LLC ("Tarzana Crossing"); no reply is on file
Claim Objectors seek disallowance of the following Claims in full: Claim Nos. 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24,
25, 26, 27, 29, 31, 33, 34, 35, 36 and 37 (the "Claims"). The Claim Objectors assert three grounds for disallowance of all Claims:
the Claims are "interests," not "claims" entitled to a pro rata distribution with other creditors,
the Claims fail to state an amount that is purportedly
claimed, and
the Claims are not supported by a copy of a writing as
required by Rule 3001(c)(1) (Fed. R. Bankr. P.). Dkt. 40, p.39.
The Claim Objectors also object to claims 24, 25, 26, and 37 on an additional ground:
that they are duplicative of claims previously filed by the holders of those claims. Id., p.40.
The tentative ruling is to sustain the Claim Objection as to all claims on ground "(w)." In addition, the tentative ruling, as to ground "(z)," is to sustain the objection insofar as disallowing the earlier version of each duplicative claim.
Legal standards for objections to claim
"The term 'claim’ is broadly defined to mean "a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secure, or unsecured . . . . " 11 U.S.C. 101(5)(A) (emphasis added). The term also broadly includes a "right to an equitable remedy for breach of performance . . . ." 11 U.S.C. 101(5)(B). "The Code utilizes this ‘broadest possible definition’ of claim to ensure that ‘all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." In re SNTL Corp., 571 F.3d 826, 838 (9th Cir. 2009).
Furthermore, "a claim may exist for bankruptcy and discharge purposes long before a cause of action accrues under nonbankruptcy law." Id., at 839. "It is only necessary that the creditor be able to fairly or reasonably contemplate the claim’s existence as of the petition date." Id.
The exclusive grounds under which a debtor may successfully object to a claim are listed in 11 U.S.C. 502(b). In re Campbell, 336 B.R. 430 (9th Cir.
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BAP 2005); In re Heath, 331 B.R. 424, 435 (9th Cir. BAP 2005).
The Claims, apart from the Claim of Tarzana Crossing With the exception of the Tarzana Crossing Claim (Claim No.
/23-2) (discussed separately below), the tentative ruling is as follows.
The Claims are "equity interests" subject to mandatory subordination (11 U.S.C. 510(b))
Claim Objectors assert that the Claims should be disallowed because they are "interests" rather than "claims." The tentative ruling is that this is correct: the Claims are, by their own admission, equity interests and, as such, must be subordinated to general unsecured claims pursuant to 11 U.S.C.
510(b). See e.g. In re Tristar Esperanza Props., LLC, 782 F.3d 492 (9th Cir. 2015) (a claim arising from an equity interest in a limited liability company is subordinated to general unsecured creditors). See also dkt. 1, PDF pp.11-15 (Debtor's listing of alleged claims as equity interests on bankruptcy schedules).
Duplicate claims are properly disallowed
Claim Objectors assert that claim 24-1 is a duplicate of claim 19-1, that claim 25-1 is a duplicate of claim 20-1, that claim 26-1 is a duplicate of claim 18-1, and that claim 37-1 is a duplicate of claim 35-1. The tentative ruling is to grant the objection in substance by treating the later filed claims as amendments to the earlier filed claims, and then disallowing the earlier filed claims as duplicative (i.e., disallow claims 18-1, 19-1, 20-1, and 35-1).
The fact that a claim is contingent is not a proper basis to disallow a claim under section 502(b)(1)
Section 502(b)(1) provides that a claim is not allowable if it is unenforceable under the applicable agreement or law "for a reason other than because such claim is contingent or unmatured." 11 U.S.C. 502(b)(1). "Under section 502(b)(1), [ ] contingent claims cannot be disallowed simply because the contingency occurred postpetition." SNTL Corp., 571 F.3d at 838.
Therefore, the tentative ruling is to overrule Claim Objectors' request to disallow the Claims based on the fact that fail to state the amount of their respective claims.
Failure to attach supporting documentation is not a
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sufficient basis to disallow a claim
Under Heath, "a request for complete disallowance of the claim merely because of inadequate documentation" is not a proper objection. 331 B.R.
424, 435. Accordingly, the tentative ruling is to overrule the Claim Objectors' request to disallow the Claims on the grounds they are not supported by copies of the operating agreement.
The Tarzana Crossing Claim
Tarzana Crossing opposes the Claim Objection on the grounds that its claim (Claim 23-2) "is not based on an equity interest in [Debtor] alone," but is also "based on the same pre-petition claims for which Tarzana Crossing filed suit long before this bankruptcy case was filed " Dkt. 137, p.6:3-5
(emphasis added). But the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") considered and rejected similar arguments in Tristar, 782 F.3d 492.
In Tristar, the Ninth Circuit affirmed the lower courts' determination that 11 U.S.C. 510(b)'s mandatory subordination applied to the claim of a former member of the debtor limited liability company (the "LLC") who obtained a judgment valuing her equity interest after the LLC did not honor a provision in its operating agreement requiring a buy-back of the withdrawing member’s interest. Id. The Ninth Circuit confirmed that § 510(b) "sweeps broadly" (id. at 495) and held that "the critical question for purposes of § 510(b) is not
whether the claim is debt or equity at the time of the petition, but rather whether the claim arises from the purchase or sale of a security" and concluded that the "claim must be subordinated if there is a sufficient ‘nexus or causal relationship between the claim and the purchase’ or sale of securities." Id. at 497 (citation omitted).
The tentative ruling is that Tarzana Crossing’s State Court claims are all directly related to and "arise from" its purchase of "security of the debtor" and Tarzana Crossing has not demonstrated that any damages it might recover from the State Court action against the Debtor would be anything but "damages arising from the purchase . . . of such a security." See 11 U.S.C. 510(b).
Therefore, the tentative ruling is to sustain the Claim Objectors' objection to the Tarzana Crossing Claim and order Claim 23-2 subordinated to general unsecured claims pursuant to 11 U.S.C. 510(b).
The tentative ruling is to deny the Claim Objectors' objection to this
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claim on all other grounds, for the reasons stated above.
Proposed order: The Claim Objectors are directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m. Brief written status report due 10/13/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20, 5/12/20, 6/30/20, 8/18/20
Docket 7
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 18, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 17, 8/18/20 at 1:00 p.m.).
Tentative Ruling for 6/30/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 14, 6/30/20 at 1:00 p.m.).
Tentative Ruling for 5/12/20:
Please see the tentative ruling for the adversary status conference (Calendar No. o. 14, 5/12/20 at 1:00 p.m.).
Tentative Ruling for 3/31/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 26, 3/31/20 at 11:00 a.m.).
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones
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Jeffrey Huron Danielle N Rushing
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Movant(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
On 3/31/20 this Court heard oral arguments, but then continued this matter to allow time for the parties to participate in a second round of mediation. Debtor's status report filed in the main case (2:19-bk-24048-NB, dkt. 169) states that mediation was unsuccessful (Id., p.5:1-4) but also represents that Debtor and Tarzana Crossing have tentatively agreed on settlement terms (Id., p.5:12-15).
There is no tentative ruling, but the parties should be prepared (a) to provide this Court with any updates on the status of those negotiations (if any) and (b) to address whether this matter should be further continued or this Court should rule on the merits of the Remand Motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
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Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which was been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). On 8/4/20, Debtor filed a status report (Main Case, dkt. 136, p.4:22-26) stating that "the parties were unable to resolve their disputes [at the mediation, but] are continuing to make efforts to resolve their disputes through Mr. Gould."
There is no tentative ruling, but the parties should be prepared (a) to provide this Court with any updates on the status of those negotiations (if any) and (b) to address whether this matter should be further continued or this Court should rule on the merits of the Remand Motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20.
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Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which has been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). The tentative ruling is to continue this matter to the same date and time as the continued status conference (see calendar no.15, 6/30/20 at 1:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Continue to 6/30/20 at 1:00 p.m. to allow time for the parties to participate in a second round of mediation. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
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appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC
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("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows. Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
(1) a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal quotation omitted).]
These elements are satisfied: (1) the motion was timely - the proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14) are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary
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abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court,
(5) the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
Several of the Tucson factors weigh in favor of abstention. First, the Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
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Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
FIrst American Title Company Pro Se
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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Docket 6
Tentative Ruling for 10/27/20:
Appearances are not required on 10/27/20.
Current issues
Continuance for amended Disclosure Statement and Plan
On 10/14/20, this Court approved a stipulation (dkt. 80) that continued the deadline for Debtor to file and serve his amended Disclosure Statement and Plan to 11/5/20. Accordingly, this status conference is continued to the date set forth below (section 2(d)) to allow this Court an opportunity to review those papers.
Monthly Operating Reports ("MORs") for Aug. & Sept., 2020
This Court's tentative ruling for 10/6/20 (copied below) directed Debtor to be prepared to address how Debtor will be able to propose a feasible plan of reorganization in view of the apparent postpetition losses reflected in the August MOR. This Court notes that Debtor's September MOR reflects a $ 9,158 payment to First Republic Bank/Citadel (dkt. 77 at PDF p. 6), but that payment falls far short of curing the remaining $14,100.19 delinquent adequate protection payments (Id. at PDF p.18). At the continued Status Conference, this Court anticipates addressing whether there is sufficient evidence of feasibility to warrant soliciting votes on any proposed Plan.
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file by 11/5/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later
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time).
Continued status conference: 11/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/6/20:
Continue as set forth below. Appearances are not required on 10/6/20.
Current issues
Continuance for amended Disclosure Statement and Plan
On 9/16/20, this Court approved a stipulation (dkt. 69) that continued the deadline for Debtor to file and serve his amended Disclosure Statement and Plan to 10/15/20. Accordingly, this status conference is continued to the date set forth below (section 2(d)) to allow this Court an opportunity to review those papers.
Amended Bankruptcy Schedules I & J
Debtor has now complied with the instructions in Bankruptcy Schedule I, line 8a, by attaching a statement of gross receipts, expenses, and net income regarding the Wonderland rental property, showing a monthly loss of
$507.55, after deducting principal and interest, real estate taxes, insurance, and only $50.00 for "[r]epairs, maintenance, and vacancy reserves." See dkt.66, p.4. First, this Court questions whether the $50.00 amount just noted is sufficient. Second, neither the $507.55 loss nor its component parts appear to be reflected on line 8a or anywhere else in Bankruptcy Schedules I and J. The tentative ruling is to direct Debtor, no later than 10/15/20, to file further amended Bankruptcy Schedules I and J and/or Debtor's declaration
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addressing the foregoing.
Monthly Operating Report ("MOR") for Aug., 2020
The MOR reflects almost $17,000 in delinquent adequate protection payments (see dkt.71 at PDF p.16), which dwarfs the reported $4,223.77 and
$45.00 balances in Debtor's DIP accounts. At the continued Status Conference, Debtor is directed to address how Debtor will be able to propose a feasible plan of reorganization in view of these apparent postpetition losses.
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file by 10/15/20 using the forms required by Judge Bason (DO NOT SERVE yet, except on the
U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required by counsel for the debtor.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties
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who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Monthly Operating Reports ("MORs")
Debtor's June 2020 MOR (dkt.58) discloses non-payment of postpetition monthly amounts owed to secured creditors. What is the current status of Debtor's postpetition defaults?
Debtor's July 2020 MOR (dkt.64) is missing the page that would have made similar disclosures, and appears to be missing a number of other pages. What is missing? The tentative ruling is to set a deadline of 9/15/20 for Debtor to file an amended July 2020 MOR.
Chapter 11 Plan (the "Plan," dkt. 63) and Chapter 11 Disclosure Statement (the "Disclosure Statement," dkt. 61)
Debtor's projection of income (dkt.61, Ex.C, at PDF pp.8-9) cross- references dkt.20 (Debtor's Bankruptcy Schedules) for a breakdown of Debtor's personal income and expenses and rental income and expenses. There are two problems with that approach.
First, Debtor's Bankruptcy Schedule I does not include any breakdown of income and expenses, despite the instruction on line 8a to "Attach a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Second, Debtor appears to be double-counting. Specifically, Debtor's Plan includes payment of the 2d mortgage on Debtor's home (dkt.63, Ex.A, at PDF p.9, Class 1B), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.27, last line); and likewise Debtor's Plan includes payment of the 1st DOT on the rental property (dkt.63, Ex.A, at PDF p.9, Class 2A), but so does Debtor's Bankruptcy Schedule J (dkt.20, at PDF p.28, line 17c).
The tentative ruling is to set a deadline of 9/15/20 for Debtor (i) to file (but NOT serve) an amended Bankruptcy Schedule I with the required "statement for each property or business," an amended Plan, and an amended Disclosure Statement correcting the above issues, and (ii) to lodge a proposed order, in the form provided on Judge Bason's portion of the Court's website (www.cacb.uscourts.gov), setting a combined hearing on final
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approval of the Disclosure Statement and confirmation of the Plan for the same date and time as the continued status conference (see Section 2(d) below).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: See above
Continued status conference: 10/27/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
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4/21/20, 6/30/20, 7/28/20, 8/4/20, 9/15/20, 9/29/20
Docket 42
Tentative Ruling for 10/27/20:
Appearances required.
Amended disclosure statement (dkt. 204) and amended plan of reorganization (dkt. 205)
The tentative ruling is to set a deadline of 11/13/20 for Debtors to file a corrected and "blacklined" Disclosure Statement, and a corrected and "blacklined" Plan, addressing the following issues, and lodge a proposed order (substantially in the form posted on Judge Bason's portion of the Court's website) setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan.
The Plan in its current form is infeasible by $1,187.22 Debtors' cash flow statement (dkt. 204, Ex.C) shows a small negative
balance after making all plan payments, adding up to the above figure over the life of the Plan. It gives the impression that the Plan is infeasible because Debtors would not be able to make the payments in the amounts proposed.
Debtors are directed to address how they can adjust their budget or Plan to cure this shortfall.
Feasibility
The latest MOR (dkt.206) appears to reflect almost $25,000 in delinquent adequate protection payments (see dkt. 206, at PDF p.8), which dwarfs the reported $750.55 and $4,441.89 in Debtors' DIP accounts. Is that accurate? If so, how can Debtors confirm a feasible plan of reorganization? If not (as this Court suspects), the tentative ruling is to set a deadline of 11/13/20 to correct this MOR (without requiring Debtor to correct prior MORs, but with a notation on the amended MOR noting that it corrects all prior MORs).
Typos
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(x) Dividend. The Plan and Disclosure Statement recite a 2% dividend, but Exhibits A and F recite a 1.4% dividend. (y) Impairment. The Plan (Ex.A) appears to have erroneous listings of which classes are impaired. (z) Blank pages. The exhibits to the Plan and Disclosure Statement include many blank pages (including Ex.H). Exhibit H should be completed, and other blank pages should be omitted.
Expired insurance policies
The MOR also identifies two insurance policies with past-dated expiration dates (dkt. 206, at PDF p.8). Have these policies been renewed?
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By
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Joanne P Sanchez Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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9/1/20
Docket 1
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew Wolf Levin (TR) Pro Se
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fr. 4/7/20, 5/5/20, 5/12/20, 6/2/20, 7/28/20, 9/1/20, 9/29/20
Docket 6
Tentative Ruling for 10/27/20:
Continue as set forth below, in view of the Chapter 7 Trustee's status report (dkt.186). Appearances are not required on 10/27/20.
Current issues
This Court is not aware of any issues that warrant a status conference at this time.
Deadlines/dates. This case was filed on 3/9/20, and converted to chapter 7 on 9/29/20 (dkt. 174).
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: N/A.
Continued status conference: 11/10/20@1 (to be concurrent with other matters.).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
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Tentative Ruling for 9/29/20:
Appearances are not required.
Current issues
Order to show cause ("OSC") re dismissal with a bar, or conversion to chapter 7, or other remedies (dkt. 133); response of the United States Trustee ("UST") (dkt. 144); response by Debtor (dkt. 146) [and additional, untimely responses, dkt.154, 157]
The tentative ruling - for the reasons stated in the OSC, the UST's response, the Procedures Order (dkt.10, 22), and in this tentative ruling - is to convert this case to chapter 7 so that the chapter 7 trustee can explore whether to (i) sell the subject property for its highest and best price, presumably with an agreed carve-out for professional fees, (ii) sell/settle the bankruptcy estate's claims against U.S. Bank, if appropriate, (iii) abandon the estate's assets to Debtor, or (iv) take other appropriate action. Alternatively, the tentative ruling is to dismiss this case, and impose a bar under 11 U.S.C. 109(g)(1) for willful failure to appear in proper prosecution of this bankruptcy case.
This Court recognizes that Debtor and her family are in an awful situation: they face the likelihood of losing their rental property through foreclosure, after a series of failures in the State Courts, while also apparently facing medical calamities and other dire circumstances. This is tragic for Debtor, and similar circumstances all too familiar in bankruptcy cases.
But Debtor has not prosecuted this bankruptcy case in any way that would lead to a realistic, good faith use of the bankruptcy system. Even at this late stage, she continues to press highly unrealistic strategies.
Debtor suggests that she may seek to employ a broker "to see if the Subject Property can be sold and the proceeds used to fund a [chapter 11] Plan" (dkt.146, p.3:23-25) (emphasis added), which might provide an "increased [sic] payout to the unsecured creditors" (id., p.3:16-17) (emphasis added), who "mainly" include (apart from possibly underwater junior lienholders) "attorneys that worked on the state court matters over the past several years and creditors related to maintenance of the Debtor’s primary asset [the subject rental property]." Id., p.2:8-11. This outline of a chapter 11 plan is nothing but wishful thinking.
Selling property that is underwater will not generate any "proceeds" to "fund" a plan; and as the UST points out Debtor is losing a substantial
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amount of money every month, so there is no apparent source for any payment to unsecured creditors, let alone any "increased" payments.
True, Debtor hopes that, despite a string of losses in the State Courts, she might be able to pull a rabbit out of a hat by raising a new theory. But, first, Debtor cannot simply ignore the disputed lien meanwhile, and use the proceeds from selling the property to "fund" a chapter 11 plan. At best, any disputed proceeds would have to be held in a disputed claims reserve.
Second, on this record this Bankruptcy Court can only conclude that Debtor's hope of any recovery on her claims against the lienholder is a highly unlikely outcome. Debtor's claims are not a basis on which to "park" in bankruptcy, and gain the benefits of the automatic stay, despite ongoing and substantial financial losses.
Debtor's new theory, as this Bankruptcy Court understands it, is that the meets and bounds description in the deed of trust of senior lienholder
U.S. Bank was not simply negligently omitted or misstated but was fraudulently altered, and that this alleged alteration would void the lien. This new theory appears very unlikely to succeed for two reasons.
First, based on what has been described to this Court, the Superior Court's reasoning was that anything to do with the meets and bounds description was immaterial. The rest of the loan documents apparently made it clear what property the parties meant to encumber, and the funds were advanced and used by Debtor, so (the Superior Court apparently ruled) there is no cognizable harm or claim. See, e.g., MTC Fin. v. Cal. Dept. of Tax & Fee Admin., 41 Cal.App.5th 742, 747 (2019) ("To be sufficient the description must be such that the land can be identified or located on the ground by use of the same.") (citation and internal quotation marks omitted; emphasis added).
Second, assuming solely for the sake of discussion that Debtor's new theory might have persuaded the Superior Court to reach a different conclusion if that argument had been raised sooner, the problem remains that Debtor's new theory almost certainly will be precluded at this late stage. This Court takes judicial notice that Debtor's counsel admits Debtor's fear that the California Court of Appeal will bar Debtor from raising this new theory based on "collateral estoppel or res judicata," and will only accept new theories if they are based on "facts that have come to light after the [State Court's] order [sustaining the demurrer] was issued." See Shemtoub Decl. (included in dkt.147), p.4:1-10 (PDF p.13) (emphasis added).
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This Court also takes judicial notice that Debtor's counsel admits that
this was the reason to recommend proceeding in this Bankruptcy Court rather than before the California Courts. Id. See also Claim Obj. (dkt.139),
p.4:8-11. Although Debtor's counsel vehemently denies forum shopping, the tentative ruling is that this is the very definition of forum shopping.
To be clear, this Bankruptcy Court is not actually deciding any of the issues being litigated in State Court. To the contrary, as Debtor notes, this Court has already ruled that the Rooker-Feldman doctrine prevents this Bankruptcy Court from reviewing the State Court's rulings. The point is only that, for bankruptcy purposes, the preponderance of the evidence (indeed, the clear and convincing evidence) is that Debtor lacks "a reasonable likelihood of rehabilitation" and there is a "substantial" and "continuing" loss to or diminution of the estate (the statute requires only that the loss or diminution be one or the other - either substantial or continuing - and both are established in this case). 11 U.S.C. 1112(b)(4)(A) (emphasis added).
For all of these reasons, the tentative ruling is that dismissal or conversion is appropriate under 11 U.S.C. 1112. The tentative ruling is that conversion to chapter 7 is the most appropriate disposition, because a chapter 7 trustee can prosecute this case in the ways that Debtor has failed to do and shows no signs of being willing to do, and alternatively the chapter 7 trustee can abandon the assets of the estate and leave Debtor and all creditors to their remedies outside of bankruptcy.
Finally, the tentative ruling is that the history of this case establishes that Debtor has willfully failed to appear in proper prosecution of this case within the meaning of 11 U.S.C. 109(g)(1). Therefore, if this case were to be dismissed (rather than converted), it would be appropriate to impose a 180- day bar against being a debtor in any future bankruptcy case.
In sum, although this Court recognizes how awful it is for anyone to lose their assets, that does not justify a misuse of the bankruptcy system. Debtor cannot gain the benefits of the automatic stay while incurring substantial and continuing lossess without any reasonable likelihood of rehabilitation.
Supplemental tentative ruling regarding untimely responses to OSC:
The tentative ruling is to strike the untimely responses to the OSC filed by U.S. Bank (dkt.154) and alleged secured creditor Natasha Espinal (dkt.157). Alternatively, the tentative ruling is that those responses only
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reinforce this Court's tentative ruling set forth above.
U.S. Bank points out that, just like Debtor's claims, Ms. Espinal's claims are the subject of a pending action in State Court. Dkt.154, pp.2:24-3:2. That reinforces this Bankruptcy Court's conclusion that the parties' disputes are properly determined in State Court.
Ms. Espinal asserts in her conclusion that the "issue before the Court is a core issue and not beholden to the bar of Rooker Feldman." [Dkt.157, p.12:5-7] She offers no analysis or citation to authority, and her bare assertion is not persuasive.
U.S. Bank also reiterates:
Although the USB DoT lacks a legal description, it nevertheless contains the correct common street address and correct Assessor's Parcel No. ("APN") for the Subject Property. (RJN ¶ 1). [U.S. Bank Response to OSC (dkt.154), p.3:25-27 (citing RJN in Adv. No. 2:20- ap-01068-NB, dkt.5)]
Throughout this bankruptcy case, nobody has disputed these assertions. This Bankruptcy Court has also verified that the Deed of Trust includes, as part of the property description, an APN (5561-007-032) and a current property address of "9219 Robin Dr., Los Angeles, California 90069" (capitalization omitted). RJN (Adv. No. 2:20-ap-01068-NB, dkt.5) p.9 (Ex.A to RJN). The street address matches the one asserted by Ms. Espinal. See dkt.157, p.13:9-10.
Under the authority cited by Debtor and Ms. Espinal themselves, this appears to be more than sufficient. "To be sufficient the description must be such that the land can be identified or located on the ground by use of the same." MTC Fin. v. Cal. Dept. of Tax & Fee Admin., 41 Cal.App.5th 742, 747 (2019) (citation and internal quotation marks omitted; emphasis added).
Similarly, the California Evidence Code provides:
The party producing a writing as genuine which has been altered, or appears to have been altered, after its execution, in a part material to the question in dispute, must account for the alteration or appearance thereof. He may show that the alteration was made by another, without his concurrence, or was made with the consent of the parties affected by it, or otherwise properly or innocently made, or that the alteration did not change the meaning or language of the instrument. If he does that, he may give the writing in evidence, but not otherwise. [Cal. Evid. Code § 1402 (quoted in
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Espinal Reply (dkt.157, p.8:8-14)) (emphasis added).]
The tentative ruling is that arguments by Debtor and Ms. Espinal are
entirely without merit, and that even if they had some remote chance of success that would be an insufficient basis on which to "park" in bankruptcy while attempting to litigate their claims. The supplemental papers only reinforce the conclusion that this case must be converted to chapter 7 or dismissed with a 180-day bar.
Application to employ Joshua Barre and Westside Property Management, Inc. (dkt. 117, the "Management Application"), Order setting hearing (dkt. 135)
The tentative ruling is to deny the Management Application in view of the foregoing tentative ruling to convert this case to chapter 7 (or, alternatively, dismiss this case).
Application to employ Law Offices of W. Derek May (dkt. 143)
The tentative ruling is to deny this employment application in view of the foregoing tentative ruling to convert this case to chapter 7 (or, alternatively, dismiss this case).
Proposed orders: The UST is requested to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling to the proposed order on the OSC, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/9/20.
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: N/A.
Continued status conference: N/A.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
1:00 PM
Adv#: 2:20-01131 Chan et al v. Le Elegant Bath, Inc.
fr. 7/28/20
Docket 1
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
Defendant(s):
Le Elegant Bath, Inc. Pro Se
Plaintiff(s):
Anthony Chan Represented By Beth Gaschen
AC YU Holding, LLC Represented By Beth Gaschen
A Touch of Brass Inc. Represented By Beth Gaschen
1:00 PM
Docket 1
Debtor(s):
Anthony Chan Represented By Jeffrey I Golden Beth Gaschen Faye C Rasch
1:00 PM
fr. 9/15/20, 9/29/20
Docket 280
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20, 8/18/20, 9/1/20, 9/15/20, 9/29/20
Docket 247
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20, 9/1/20, 9/15/20, 9/29/20
Docket 49
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272), Order denying plan hearing request without prejudice (dkt. 304)
As of the preparation of this tentative ruling, the docket does not appear to reflect that Debtor has resolved the issues set forth in this Court's 9/21/20 order (dkt. 304, p.3:1-12). Accordingly, the tentative ruling is to continue Debtor's Plan Hearing Request to be concurrent with the continued Status Conference set forth below.
SubChapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), Michael Tremblay's response (dkt. 291), Interim Turnover Order (dkt. 300)
There is no tentative ruling. The parties should be prepared to discuss the status of Debtor's turn over and whether any supplemental relief is necessary and appropriate at this time.
SubChapter V Trustee's motion for order (1) directing US Marshal to evict all occupants of Laurel Property and (2) issuing an order to show cause re contempt (dkt. 318, the "Eviction/OSC Motion"), application for hearing on shortened time (dkt. 319), SubChapter Trustee's declaration (dkt. 318), Debtor's declaration (dkt. 320), Orantes declaration (dkt. 322), Order shortenting time (dkt. 323) and POS (dkt. 326), supplemental SubChapter
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Trustee declaration (dkt. 328), supplemental declarations of Debtor (dkt. 329) and Mr. Orantes (dkt. 330), Debtor's opposition (dkt. 331)
The tentative ruling is to grant the Eviction/OSC Motion as follows:
Order directing U.S. Marshal or other appropriate law enforcement agency to evict Debtor, her parents, and any other occupants of Laurel Property
The tentative ruling is to grant the request and direct the SubChapter V Trustee to lodge a proposed order directing the U.S Marshal's office to evict any occupant in possession of the Laurel Property, once that office resumes enforcing orders for eviction.
Issuance of OSC
The tentative ruling is that the SubChapter V Trustee has carried her burden of proof to establish the appropriateness of issuing an order directing Debtor to appear and show cause at the continued status conference (see section (2)(d) below) why this Court should not find her in contempt of this Court's Turnover Order (dkt. 300) and impose sanctions as follows:
Compensatory Sanctions: to reimburse the SubChapter V Trustee for her fees and costs in bringing the Eviction/OSC Motion, responding to Debtor's opposition to the OSC (if any) and appearing at a hearing on the OSC, and
Coercive Sanctions: beginning at $100/day from 10/14/20 (the date Debtor was put on notice of the SubChapter V Trustee's request for sanctions) and in increasing amounts, to be determined at the hearing on the OSC, until Debtor has surrendered full possession of the Laurel Property in "broom clean" condition and in full compliance with the Turnover Order.
The tentative ruling is to set a deadline of 11/3/20 for Trustee to file and serve a declaration setting forth the dollar amounts of compensatory sanctions requested, 11/10/20 for any opposition, and 11/17/20 for any reply.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: see above (& dkt.270)
Continued status conference: 12/1/20 at 1:00 p.m. No written
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status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208 (filed 5/19/20) and dkt.303 (filed 9/21/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 318
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
fr. 9/15/20, 9/29/20
Docket 49
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the Status Conference (Calendar No. 30, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
BAODI ZHOU
vs DEBTOR
Docket 50
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the Status Conference (Calendar No. 30, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
Docket 15
Tentative Ruling for 10/27/20:
Continue as set forth below. Appearances are not required on 10/27/20.
Current issues
Motions of Baodi Zhou for relief from automatic stay or dismissal of the Investment case (dkt.49, 50, 59); Debtor's opposition (dkt.62), reply (dkt.68)
This Court's ruling on 9/29/20 was temporarily to deny this motion, but to continue the matter to re-assess what progress has or has not been made in this case. The tentative ruling is that Debtor appears to be making sufficient progress - rejecting some leases and retaining a broker to attempt to maximize the value of the remaining assets and businesses - to warrant a further continuance. The tentative ruling is to set a continued hearing contemporaneous with the continued status conference set forth below.
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 to chapter 11 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with affiliated debtors (dkt.64).
Bar date: (i) Investment 9/9/20 (dkt. 40; timely served, dkt. 43); Affiliated Debtors 11/10/20.
Procedures order: dkt.18 (timely served, dkt.20) (also timely served in each jointly administered case).
Plan/Disclosure Statement*: vacate the existing deadline of 11/30/20 in view of Debtors' pursuit of a sale of the business.
Continued status conference: 12/22/20 at 1:00 p.m., brief status report due 12/8/20.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
1:00 PM
Docket 116
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 60
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
YUNUEN CAMPOS
vs DEBTOR
Docket 22
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
Yunuen Campos Represented By Lauren A Dean
1:00 PM
fr. 8/18/20, 9/15/20, 9/29/20
Docket 51
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103), interim order (dkt.138)
The tentative ruling is to grant the Budget motion on a further interim basis (except as modified in section 1(b) below) and set a further continued hearing concurrent with the status conference (see below).
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to continue to pay Ms.
Howerton monthly compensation of $6,000, on an interim basis, and set a further continued hearing concurrent with the status conference (see below) pending additional evidence from Debtor’s accountant.
Yunuen Campos' motion for relief from the automatic stay (the "R/S Motion," dkt. 22), Debtor's opposition (dkt. 34), notice of continued hearing (dkt. 35) & proof of service (dkt. 36), Ms. Campos' reply (dkt. 55) and evidentiary objections (dkt. 56), Ms. Campos' supplemental briefing (dkt. 66, 82), Debtor's supplemental briefing (dkt. 71, 72), scheduling order (dkt. 88), Ms. Campos' second supplemental reply (dkt. 102), Debtor's second supplemental opposition (dkt. 114)
The tentative ruling is to take this matter off calendar because the issues have been fully resolved by this Court's order (dkt. 145), without prejudice to any future motion for relief fom the automatic stay.
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Debtor's motion to extend exclusivity periods (dkt. 116), Ms.
Campos' opposition (dkt. 130), Debtor's reply (dkt. 155)
The tentative ruling is to overrule Ms. Campos' opposition and grant the extension motion, for the reasons stated by Debtor, thereby extending Debtor's plan exclusivity period to 12/18/20, and the deadline for Debtor to gain acceptance of the plan to 3/26/21. Note: Ms. Campos' opposition was not linked to the motion, and in future she is encouraged to double-check that she has complied with the requirement to make such links (among other things, failure to link documents could lead to them being overlooked, to the prejudice of Ms. Campos).
Proposed orders: Debtor is directed to lodge proposed orders on each of the following motions via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 11/10/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888)
1:00 PM
882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
fr. 11/27/18, 2/5/19, 2/26/19, 3/26/19, 4/9/19, 04/30/19, 06/04/19; 08/06/19, 9/24/19, 10/29/19,
11/12/19, 12/10/19, 1/28/20, 3/3/20, 5/5/20, 5/12/20,
7/14/20
Docket 7
Tentative Ruling for 10/27/20:
Continue to 1/26/21 at 1:00 p.m., brief status report due 1/14/21, all subject to being mooted if an order closing the case on an interim basis is issued before that time. Appearances are not required on 10/27/20.
Current issues
This Court has no issues to raise sua sponte.
Deadlines/dates
This case was filed on 10/22/18, and Debtors' plan was confirmed on 7/20/20 (dkt. 173).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Edmond Melamed Represented By Michael Jay Berger
Joint Debtor(s):
Rozita Melamed Represented By Michael Jay Berger
2:00 PM
Docket 145
- NONE LISTED -
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
2:00 PM
Docket 60
Appearances required. Conditionally grant the motion as set forth below, subject to (i) the Trustee specifying at the hearing the precise legal grounds for a sale free and clear (i.e., is it under 11 U.S.C. 363(f)(1), (2), (3), (4) or (5), and what are the alleged grounds under which each paragraph is applicable?) (see the posted "Procedures of Judge Bason" available at www.cacb.uscourts.gov), (ii) the Trustee filing a supplemental declaration following the hearing that attaches a preliminary title report (or the equivalent) and shows that all persons who may assert any interest in the property have been served, so that it is apparent what interests the Trustee intends to sell free and clear of, (iii) payment in full of Bayview Loan Servicing, LLC’s lien (dkt. 66), and (iv) any overbids at the hearing.
Proposed order: Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Bayview Loan Servicing, LLC’s amended non-opposition (dkt. 66)
Analysis: The tentative ruling is to grant the sale motion and conditionally authorize a sale free and clear (11 U.S.C. 363(b) & (f)), subject to overbids.
In addition, the tentative ruling is to grant the request for a "good faith" finding (11 U.S.C. 363(m)) if Leticia Gutierrez is the successful bidder and,
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alternatively, subject to the successful bidder or backup bidder filing declaration(s) providing sufficient evidence of such good faith (see the posted Procedures of Judge Bason, available at www.cacb.uscourts.gov).
The tentative ruling is also to grant the request to waive the 14-day stay provided by Rule 6004(h) (Fed. R. Bankr. P.).
In future, counsel is encouraged to add a footnote (or similar notation) indicating what has been changed when filing an errata, so the Court does not have to do a line-by-line comparison.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Everardo Rodriguez Represented By Marcus Gomez
Joint Debtor(s):
Miriam Rodriguez Represented By Marcus Gomez
Trustee(s):
Wesley H Avery (TR) Represented By Stella A Havkin
2:00 PM
Docket 213
Appearances required.
Current issues
Alleged employees’ motion for issuance of order directing Young Young Food LLC ("YYF") to appear for 2004 examination and production of documents (dkt. 146, "2004 Motion"); Order granting 2004 Motion (dkt. 160, "2004 Order"); Alleged employees’ motion for issuance of OSC re contempt (dkt. 202, "Motion for OSC"), Order setting hearing on Motion for OSC (dkt. 215, the "OSC"), YYF’s opposition papers (dkt. 225, 226, 227), Alleged employees’ reply papers (dkt. 228, 230)
The tentative ruling is to find YYF in contempt of court and impose sanctions in an amount to be determined at the hearing and subsequent proceedings, as set forth below.
The alleged employees have made a sufficient showing that YYF violated this Court’s 2004 Order and YYF has not responded with argument or evidence establishing that it was impossible to comply
The tentative ruling is to overrule YYF’s opposition, grant the Sanctions Motion for the reasons stated in the Alleged Employees’ reply papers (dkt.
228, 230), and find that YYF is in contempt of the 2004 Order.
In addition and alternatively, the tentative ruling is that on the merits this Court is not persuaded by YYF’s arguments that the (i) 2004 Order is overbroad and (ii) seeks discovery that could and should have been sought in a pending nonbankruptcy proceeding for the same reasons stated in this Court’s prior rulings and orders addressing those arguments. See Order (dkt. 173) at PDF p.12, para. "(b)"; Order (dkt. 117) at PDF p.5, para. "(c)"; and Order (dkt. 101) at PDF pp.6-7, para. "(3)."
Sanctions
Compensatory
The tentative ruling is to grant the Alleged Employees’ request for
2:00 PM
compensatory sanctions to reimburse them for their costs incurred preparing and filing the Sanctions Motion, responding to the OSC, and appearing at this hearing. The tentative ruling is to set a deadline of 11/5/20 for the Alleged Employees to file and serve a declaration setting forth their time records and expenses, 11/13/20 for any opposition, 11/19/20 for any reply, and a hearing on 12/1/20 at 2:00 p.m.
Coercive
The tentative ruling is to award coercive sanctions, in an escalating dollar amount to be addressed at the hearing.
Examination by written discovery
The tentative ruling is to grant the Alleged Employees’ request to obtain written discovery of YYF, in lieu of any in person examination out of concerns presented by the risks of COVID-19, by propounding 20 interrogatories on YYF, without prejudice to any follow-up discovery. The parties should be prepared to address what deadlines, if any, this Court should set for serving and responding to the Alleged Employees’ interrogatories (or if this Court should defer to the parties to act within the usual procedures).
Proposed order: Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
2:00 PM
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
fr. 10/1/19, 11/12/19, 11/21/19, 01/14/20, 03/03/20, 04/07/20, 5/19/20, 7/14/20, 7/28/20, 8/4/20, 9/15/20
BOBS, LLC
vs DEBTOR
Docket 936
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 10/27/20 at 2:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 9/15/20 at 1:00 p.m.).
[INTERIM TENTATIVE RULINGS OMITTED]
Tentative Ruling for 10/1/19:
Appearances required. There is no tentative ruling, but the parties should be prepared to address (1) a proposed timeline, and sequence, for discovery and court proceedings regarding the value of the Paramour and whether Bobs,
LLC's second loan is secured or unsecured, and (2) whether this Court should set an evidentiary hearing regarding the value of the Paramour, or whether other procedures are appropriate, such as using a third party appraiser, selected jointly by the parties' own appraisers, who would be either appointed as this Court's own expert witness to assist this Court in assesing the parties' appraisals and testimony of their appraisers, or, alternatively, whose determination would be binding. See Motion (dkt.936), Opposition papers (dkt.948, 949, 950, 951, 952), and Reply papers (dkt.958, 959).
2:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
Movant(s):
Bobs, LLC Represented By
David I Brownstein Gerrick Warrington
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20, 7/14/20, 7/28/20,
8/4/20, 09/15/20
Docket 1
Tentative Ruling for 10/27/20:
Continue both matters on calendar for today as set forth below. Appearances are not required on 10/27/20.
Current issues
Bobs LLC Motion For Relief From The Automatic Stay (dkt. 936)
Continue to 2/9/21 at 2:00 p.m. pursuant to the parties' stipulation (dkt.1290).
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/8/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
Limited Notice: A "Core Service List" has been established (see dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
2:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
10:00 AM
Docket 120
ZoomGov Instructions for all reaffirmation agreement hearings on 10/29/20:
You will not be permitted to be physically present in the courtroom or to appear through CourtCall. You may connect to the ZoomGov videoconference by entering the videoconference URL shown below into an internet browswer on a computer, tablet or smartphone, and entering the meeting ID and password, when prompted:
Videoconference URL: https://cacb.zoomgov.com/j/1607196646 Meeting ID: 160 719 6646
Password: 868741
If you are unable to send and receive audio or video through your computer or other device, or do not have a computer or smartphone, you may appear by telephone by dialing the following number and entering the following conference information:
Audioconference Tel. No.: US: +1 669 254 5252 or +1 646 828 7666
Meeting ID: 160 719 6646
Password: 868741
Debtor(s):
Mark Abbey Slotkin Represented By Leslie A Cohen
Trustee(s):
Elissa Miller (TR) Represented By
10:00 AM
Robyn B Sokol
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Amy Elizabeth Hudson Represented By Clifford Bordeaux
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Alfretta Wesley Represented By Daniela P Romero
Trustee(s):
Carolyn A Dye (TR) Pro Se
10:00 AM
Docket 13
- NONE LISTED -
Debtor(s):
Jose Antonio Rodriguez Represented By Laleh Ensafi
Joint Debtor(s):
Marisela Torres-Barrios Represented By Laleh Ensafi
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
dba Hyundai Motor Finance]
Docket 8
- NONE LISTED -
Debtor(s):
Emily Suzanne Esses Represented By Daniela P Romero
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Cruz Annette Ferraro Represented By
Michael H Colmenares
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Cruz Annette Ferraro Represented By
Michael H Colmenares
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 17
- NONE LISTED -
Debtor(s):
Yong Bum Cho Represented By Kenneth W Moffatt
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
Docket 19
- NONE LISTED -
Debtor(s):
Giancarlo Leonardo Nigro Represented By Peter M Lively
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Giancarlo Leonardo Nigro Represented By Peter M Lively
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Jose Antonio Estrada Jr Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Mayra Carmina Mendoza Represented By Philomena N Nzegge
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Mayra Carmina Mendoza Represented By Philomena N Nzegge
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 9
- NONE LISTED -
Debtor(s):
Alfredo Oscar Gak Represented By Raymond J Bulaon
Joint Debtor(s):
Maria Patricia Gak Represented By Raymond J Bulaon
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
Docket 14
- NONE LISTED -
Debtor(s):
Tina Nicole Taylor Pro Se
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
Docket 11
- NONE LISTED -
Debtor(s):
Sandra Angelica Venegas Pro Se
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
Docket 8
- NONE LISTED -
Debtor(s):
Evelyn Martinez Represented By
Sevag Nigoghosian
Trustee(s):
John P Pringle (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Peter Anthony Valenzuela Represented By Peter M Lively
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Ray Valdiviezo Represented By
R Grace Rodriguez
Joint Debtor(s):
Michele E. Valdiviezo Represented By
R Grace Rodriguez
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 7
- NONE LISTED -
Debtor(s):
Pedro Martinez Pro Se
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 6
- NONE LISTED -
Debtor(s):
Pedro Martinez Pro Se
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 8
- NONE LISTED -
Debtor(s):
Pedro Martinez Pro Se
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 9
- NONE LISTED -
Debtor(s):
Virginia Macias Represented By Marcus Gomez
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 20
- NONE LISTED -
Debtor(s):
Eric Banuelos Represented By Marlin Branstetter
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
Docket 12
- NONE LISTED -
Debtor(s):
Lisa Marie Webley Represented By Gregory M Shanfeld
Trustee(s):
Peter J Mastan (TR) Pro Se
10:00 AM
Docket 10
- NONE LISTED -
Debtor(s):
Maricruz Hernandez Ramirez Represented By Marlin Branstetter
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
fr. 10/6/20
Docket 11
- NONE LISTED -
Debtor(s):
Patrick Fitzgerald Humphrey Represented By Julie J Villalobos
Joint Debtor(s):
Angela Garcia-Humphrey Represented By Julie J Villalobos
Trustee(s):
Sam S Leslie (TR) Pro Se
10:00 AM
fr. 10/7/20
Docket 10
- NONE LISTED -
Debtor(s):
Julian Antonio Flores Oyuela Represented By Marlin Branstetter
Trustee(s):
Timothy Yoo (TR) Pro Se
10:00 AM
COMMUNITY LOAN SERVICING, LLC
vs DEBTOR
Docket 30
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Thomas Lewis Calvet Represented By Julie J Villalobos
Movant(s):
Community Loan Servicing, LLC Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, N.A.
vs DEBTOR
Docket 10
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 14).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marvin C. Hur Represented By Joshua L Sternberg
Joint Debtor(s):
Connie K. Hur Represented By Joshua L Sternberg
10:00 AM
Movant(s):
HSBC Bank USA, N.A., as Trustee Represented By
Dane W Exnowski
Trustee(s):
Jason M Rund (TR) Pro Se
10:00 AM
STUART R. WEISS, TRUSTEE OF THE STUART R. WEISS REVOCABLE TRUST VS
DEBTOR
Docket 9
Grant in part and deny in part as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request because there is no evidence of unauthorized transfers, multiple bankruptcy cases affecting the subject property, or other equivalent cause for such relief.
10:00 AM
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
David Ko-Hsin Wang Pro Se
Movant(s):
Stuart R. Weiss, Trustee of the Stuart Represented By
Michael Jay Berger
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Hrg re: Motion for relief from stay [RP] TOORAK CAPITAL PARTNERS, LLC
vs
DEBTOR
Docket 58
Grant in part and continue in part to 11/10/20 at 10:00 a.m., as set forth below. Appearances are not required on 11/3/20.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: PDP Properties Trust, a California Land Trust, dated November 2, 2018.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant (i) serving, on the day
10:00 AM
after the current hearing date, the motion papers and notice of the continued hearing date, and (ii) filing that notice and a proof of service no later than the next day. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Kelly W Maxwell Pro Se
Movant(s):
Toorak Capital Partners, LLC Represented By Jennifer C Wong
10:00 AM
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
MAGUIRE CA PORTFOLIO LLC
vs DEBTOR
Docket 10
- NONE LISTED -
Debtor(s):
Stephan Klein Represented By
Leroy Bishop Austin
Movant(s):
Movant: Maguire CA Portfolio LLC Represented By
Ian Landsberg
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SECURED INCOME GROUP, INC.
vs DEBTOR
Docket 4
Grant as provided below, subject to any oppositions at the hearing. This Court will accept oppositions at the hearing in view of Movant's failure to comply with Judge Bason's posted procedures (available at www.cacb.uscourts.gov), which direct that Movant must provide notice that oppositions must be filed no later than five days prior to the hearing (see dkt. 4, p. 2, para. 7). Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
10:00 AM
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice: there is certainly evidence and notice of a scheme, but not sufficient notice of any allegation that Debtor was a co- conspirator in the scheme.
No prejudice to Debtor intended. Based on the record, it appears that this may be a "hijacked" case, and that Debtor might be innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. Bap 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
10:00 AM
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Joanna J Ochoa Garcia Pro Se
Movant(s):
Secured Income Group, Inc. Represented By Coby Halavais
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TD AUTO FINANCE LLC
vs DEBTOR
Docket 52
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Ramon Joel Dominguez Represented By Guy R Bayley
Movant(s):
TD Auto Finance LLC Represented By Jennifer H Wang Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 96
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
On the one hand, Debtor's excuse (blaming his former counsel) does not match this Court's records of the representations made at the hearing on 10/6/20 at which this Court granted relief from the automatic stay (Debtor failed to respond to repeated communications). In addition, Debtor's declaration does not match the copies of checks provided: the total of all payments does not appear to fully cure the postpetition arrears; the dates on the checks appear to be inconsistent with the payment dates recited in Debtor's declaration; and it appears that fewer than all checks have been photocopied. Moreover, any ability of this Bankruptcy Court to reimpose the automatic stay is limited. See generally In re Wishon, 410 B.R. 295 (Bankr. Or. 2009).
On the other hand, Debtor has now made very substantial payments (even if they might not fully cure all postpetition arrears); and no opposition has been filed by the party who was granted relief from the automatic stay -
U.S. Bank, National Association as Legal Title Trustee for Truman 2016 SC6 Title Trust ("US Bank"). The order setting this hearing (dkt. 97) set a deadline of 10/23/20 for any opposition, and that order was served on counsel of record for US Bank. See dkt.99).
Based on the foregoing, the reasons for granting relief outweigh any reasons for denying relief. Accordingly, the tentative ruling is to grant the motion and reimpose the automatic stay as against US Bank as of the date and time of this hearing.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Alexander Karimi Represented By Kevin Tang
Movant(s):
Alexander Karimi Represented By Kevin Tang
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 50
Appearances required.
The tentative ruling is to continue this matter to 12/1/20 at 10:00 a.m., with a deadline of 11/5/20 for Debtor to service notice on all creditors of the continued hearing date and a deadline of 11/17/20 for any oppositions and 11/24/20 for any reply, all for the reasons set forth below. Meanwhile the parties should be prepared to address at this hearing the issues raised in the Order Provisionally Granting Application and Setting Hearing on Shortened Notice (the "OST," dkt. 53) (except for the preliminary title report and local form of notice of sale, which appear to have been sufficiently addressed by dkt. 59, 60).
It appears that a continuance is required based on Debtor's failure to serve the motion papers and OST on all creditors, as required by the OST (dkt.53, p.2) and by Rule 2002(a)(2) (Fed. R. Bankr. P.). See Creditor Matrix and compare J. Flores Decl. (dkt.58) (omitting, e.g., Chrysler Capital, and Capital One Bank). The tentative ruling is that, because the pending motion for relief from the automatic stay (dkt.37) has been continued to 12/8/20 (by oral ruling at the hearing on 10/27/20), and because no other exigency has been shown, there is sufficient time to continue this motion on the schedule set forth at the start of this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
10:00 AM
COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01633 Mastan, Chapter 7 Trustee v. Ebuehi et al
Docket 5
Grant. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Defendant(s):
Finnian Osakpamwan Ebuehi Pro Se
Elizabeth Olohirere Ebuehi Pro Se
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By
11:00 AM
Movant(s):
Edwin I Aimufua Joseph Virgilio
United States Trustee (LA) Represented By Kelly L Morrison
Plaintiff(s):
Peter J. Mastan, Chapter 7 Trustee Represented By
Ashleigh A Danker
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
11:00 AM
Adv#: 2:20-01303 Yoo v. Kim et al
Docket 1
Appearances required.
This Court has reviewed the parties' joint status report (adv.dkt. 13) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR
11:00 AM
Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
[Intentionally omitted: it appears that mediation may be unproductive, at least prior to discovery and narrowing of the issues.]
Deadlines
This adversary proceeding has been pending since 8/27/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 1/22/21 deadline. Discovery cutoff (for completion of discovery): 2/5/21.
Expert(s) - deadline for reports: 2/12/21.
Expert(s) - discovery cutoff (if different from above): 2/26/21. Dispositive motions to be heard no later than: 4/6/21.
Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers, including direct testimony by declaration unless excused (see posted forms of order for video trials, on Judge Bason's portion of the Court's web page): TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
11:00 AM
Debtor(s):
Irene H Kim Represented By
Donald E Iwuchuku
Defendant(s):
Hyong Chan Kim Pro Se
Sunhee Kim Pro Se
Irene H Kim Represented By
Donald E Iwuchuku
Plaintiff(s):
Timothy J Yoo Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
1:00 PM
States of America Internal Revenue Service Pursuant to FRBP 3001(c), 11 U.S.C. Section 502(b)(1)
fr. 8/18/20
Docket 155
- NONE LISTED -
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
fr. 9/17/19, 10/1/19, 10/29/19, 12/10/19, 12/17/19, 1/28/20, 02/18/20, 3/3/20, 4/7/20, 5/5/20, 5/19/20,
6/30/20, 7/28/20, 9/1/20
Docket 1
Tentative Ruling for 11/3/20:
Continue to 11/10/20 at 1:00 p.m., concurrent with other matters. Appearances are not required on 11/3/20.
Current issues
Status reports
This Court has reviewed the Subchapter V Trustee's final report (dkt.191). In addition, the order confirming Debtor's second amended chapter 11 plan (dkt. 178) directed Debtor to file and serve a post-confirmation status report by 10/20/20 (id., p.5:8-27). This Court has reviewed Debtor's untimely post-confirmation status report (filed 10/27/20) (dkt.194, amended dkt.195).
This Court does not have any issues to raise sua sponte, but Debtor is cautioned that failure to comply with this Court's filing deadlines in future may result in adverse consequences. At the continued hearing Debtor is directed to address the status of the contemplated sale of the Honolulu Terrace property. See Plan (dkt.167), p.7.
Deadlines/dates
This case was filed on 8/30/19, and Debtors' plan was confirmed on 9/4/120 (dkt. 178).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
1:00 PM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
1:00 PM
(iii) Thomas Polis, (iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions fr. 8/19/20, 9/17/20
Docket 173
Tentative Ruling for 11/3/20:
Appearances required.
There is no tentative ruling, except for the very preliminary tentative ruling stated orally at the evidentiary hearing on 9/17/20. The parties should be prepared to deliver their closing arguments. This Court anticipates either (a) making oral findings of fact and conclusions of law, and possibly directing counsel to prepare more extensive written findings and conclusions, or alternatively (b) taking the matter under submission.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
1:00 PM
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
1:30 PM
Docket 12
- NONE LISTED -
Debtor(s):
Giancarlo Leonardo Nigro Represented By Peter M Lively
Trustee(s):
Heide Kurtz (TR) Pro Se
1:30 PM
fr. 10/29/20
Docket 19
- NONE LISTED -
Debtor(s):
Giancarlo Leonardo Nigro Represented By Peter M Lively
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
U.S. BANK NA vs
DEBTOR
Docket 69
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Kipling Renard Spence Represented By
David Samuel Shevitz
Movant(s):
U.S. Bank NA, successor trustee to Represented By
Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY,FSB
vs DEBTOR
Docket 225
- NONE LISTED -
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Wilmington Savings Fund Society, Represented By
Lior Katz
10:00 AM
DAVID W. EP2 REDDING OASIS LLC
vs DEBTOR
Docket 6
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Background
Debtor previously filed a Chapter 11 case on 8/10/20. That case was dismissed on 9/25/20 pursuant to a stipulation entered into between the United States Trustee and Debtor to dismiss the debtor with a 180-day bar on refiling a chapter 11 case. The stipulation expressly stated that the refiling bar did nor restrict or otherwise prevent Debtor from filing a Chapter 7 or Chapter 13 case. Movant objected to the stipulation and sought conversion of Debtor's case to Chapter 7. Judge Bluebond overruled Movant's objection and approved the stipulation.
Debtor's Eligibility to File a Chapter 13 Case
Movant asserts that Debtor is not eligible to file a Chapter 13 case because Debtor owes movant alone over $9,000,000.00. (dkt.6, p.10). True, Debtor's prior Bankruptcy Schedules filed in the Chapter 11 case (dkt.7, Ex.1) listed Debtor as owner of the subject property and listed an undisputed, liquidated, non-contingent debt to Movant of $8,750,000.00. But that appears to be an obvious error by Debtor. Both the promissory note and the deed of trust attached to Movant's motion are executed by Debtor as trustee of certain trusts, not in his individual capacity. See dkt.6, Ex. 2&3, at PDF pp.52 & 74.
10:00 AM
Nor is this Court aware of any personal guaranty by Debtor. Therefore the tentative ruling is that Movant has not established Debtor's ineligibility for chapter 13.
Other grounds for relief
But the same facts recited above - about the distinction between Debtor individually and Debtor as trustee of the trust that appears to own the property and be obligated on the debt - cast doubt on whether the automatic stay applies at all in this bankruptcy case. The tentative ruling is that it does not.
In addition, supposing for the sake of discussion that the automatic stay were to apply, Movant has presented evidence that the property is very over-encumbered (see dkt.6 p.8 & Ex.4) which raises questions about whether Movant's interest is adequately protected (11 U.S.C. 362(d)(1)), and whether the subject property is "necessary to an effective reorganization." 11
U.S.C. 362(d)(2). In addition, regardless whether Debtor actually holds legal title to the property, his apparent assertion of an interest in it, and his apparent use of this bankruptcy filing to stop the foreclosure sale, might estop Debtor to deny that Movant qualifies for relief under 11 U.S.C. 362(d)(1), (2) and (4), or under this Bankruptcy Court's more general powers to grant "in rem" relief under the analysis set forth below.
The tentative ruling is that all of the forgoing is enough to establish grounds for relief from the automatic stay under 11 U.S.C. 362(d)(1), (2) and (4), and that the burden was on Debtor to rebut that showing by the deadline of 11/5/20. See Motion (dkt.6), p.2 (listing deadline). But as of the preparation of this tentative ruling Debtor has not filed any opposition.
In addition, Debtor has failed to file numerous documents that were due on 11/2/20 (see dkt.1), nor has Debtor requested an extension of time to file those documents. That reinforces the evidence that Debtor filed this bankruptcy case for improper purposes.
Based on the foregoing, the tentative ruling is to grant the following
relief.
The automatic stay does not apply
Based on the record before this Court, it appears that Debtor has no cognizable interest in the subject property and is not personally obligated on the subject debt, so the tentative ruling is that none of the provisions of 11
10:00 AM
U.S.C. 362(a) apply.
In the alternative and in addition, this Court recognizes that even if Debtor does not have legal title to the subject property, he might assert or have an equitable interest, and he might be obligated to Movant under various theories (e.g., alter ego), and accordingly the tentative ruling is to grant relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1), (d)(2), and (d)
(4).
To the extent, if any, that the motion seeks to terminate the automatic
stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State
10:00 AM
laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
10:00 AM
Debtor(s):
Donald Gregory Levenson Represented By Eugene S Fu
Movant(s):
David W. EP2 Redding Oasis LLC Represented By
David W. Meadows
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 48
- NONE LISTED -
Debtor(s):
Jay Balingcos Represented By Julie J Villalobos
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
1SHARPE OPPORTUNITY INTERMEDIATE TRUST
vs DEBTOR
Docket 38
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other
10:00 AM
enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this might be a "hijacked" case, and that Debtor might be innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. BAP 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the apparent hijacking or other abusive scheme.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
10:00 AM
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Javier Zepeda Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Patricia Zepeda Represented By Jaime A Cuevas Jr.
Movant(s):
1Sharpe Opportunity Intermediate Represented By
Reilly D Wilkinson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOGIX FEDERAL CREDIT UNION
vs DEBTOR
Docket 29
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Jess Alfred D Mangubat Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Elizabeth Santos Mangubat Represented By
Hasmik Jasmine Papian
Movant(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KINECTA FEDERAL CREDIT UNION
vs DEBTOR
Docket 8
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
10:00 AM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Alberto Montes Rodriguez Represented By James G. Beirne
Movant(s):
Kinecta Federal Credit Union Represented By Mark S Blackman
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
10:00 AM
WLM-CCC, LLC
vs DEBTOR
Docket 37
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
Movant has argued that the automatic stay does not apply, and as of the preparation of this tentative ruling neither Debtor nor the Chapter 7 Trustee has not filed any opposition and the deadline to do so has passed. Accordingly, the tentative ruling is that the automatic stay does not apply.
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now
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(Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017):
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marc Thanh Hoang Represented By Patricia Rodriguez
Movant(s):
WLM-CCC, LLC Represented By Douglas D Alani
Trustee(s):
John J Menchaca (TR) Pro Se
10:00 AM
CHARLTON WEEKS, LLP
vs DEBTOR
Docket 7
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
Alternatively, the automatic stay does not apply because Movant has presented evidence that any interest Debtor had in the property terminated prepetition, and it obtained a prepetition writ of possession. See In re Perl, 811 F.3d 1120, 1127-28 (9th Cir. 2016) ("We conclude that under California law, entry of judgment and a writ of possession following unlawful detainer proceedings extinguishes all other legal and equitable possessory interests in the real property at issue.").
In the alternative and in addition, this court grants relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above conclusion that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second,
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even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request for lack of sufficient cause shown: there is no evidence of the type typically required for such relief, such as multiple bankruptcy filings or unauthorized transfers combined with a scheme to delay, hinder, or defraud creditors.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so
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the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Tricia Elgg Pro Se
Movant(s):
Charlton Weeks LLP Represented By James W Charlton
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WELLS FARGO BANK, NA
vs DEBTOR
Docket 66
Debtor(s):
Brenda Kay Turner Represented By Barry E Borowitz
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
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HSBC BANK USA, NA
vs DEBTOR
Docket 37
Tentative Ruling for 11/10/20:
Appearances required. At the hearing on 9/1/20 this matter was continued for Debtor to close the proposed sale of the subject property. See dkt.47. Has that sale closed?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Grant as set forth below because as of the drafting of this tentative ruling, Debtor has not filed a motion to sell the property as proposed in her opposition (dkt. 40) and at the 8/4/20 hearing. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic
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appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact
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CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's response (dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Aquita Winslow Represented By Elena Steers
Movant(s):
HSBC BANK USA, N.A Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 52
Tentative Ruling for 11/10/20 (same as for 9/29/20):
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 54).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Bianca Marie Aranda Represented By William G Cort
Movant(s):
PennyMac Loan Services, LLC Represented By
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Trustee(s):
Megan E Lees Robert P Zahradka Christina J Khil Josephine E Salmon
Kathy A Dockery (TR) Pro Se
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LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
Tentative Ruling for 11/10/20:
Appearances required. At prior hearings this Court was persuaded to continue this matter for a possible adequate protection order or other resolution. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/4/20:
Continue to 11/10/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.41). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC
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APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20 [revised to reflect new CourtCall date]:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [8/31/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 5/19/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/19/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Hernandez Contreras Represented By Juanita V Miller
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HSBC BANK USA, NATIONAL ASSOC
vs DEBTOR
Docket 36
Debtor(s):
Aura Marina Figueroa Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC BANK USA, NATIONAL Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Debtor(s):
Edgar Pineda Rios Represented By Theresa Hana
Movant(s):
U.S. Bank National Association, as Represented By
Kelsey X Luu Gilbert R Yabes James F Lewin
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 53
Tentative Ruling for 11/10/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt.56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/27/20:
Appearances required.
At the hearing on 9/1/20, this Court was persuaded to continue the matter and directed Movant to give notice by 9/4/20. As of the preparation of this tentative ruling, no notice is on file. Why not?
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There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 56).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Jose A. Vallejos Represented By Donald E Iwuchuku
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 46
Debtor(s):
Fidel Santiago Gama Sr. Represented By Matthew D. Resnik
Joint Debtor(s):
Yelba R Santiago Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
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U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 37
Debtor(s):
Kelvin Lamar Shelton Sr. Represented By Ali R Nader
Movant(s):
U.S. Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
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WILMINGTON TRUST, NATIONAL ASSOC
vs DEBTOR
Docket 36
Tentative Ruling for 11/10/20:
This matter was continued to this date for possible negotiation of an adequate protection order. As of the preparation of this tentative ruling, no such order has been lodged, nor does the docket reflect any other reason not to grant the motion as set forth below. The tentative ruling is to grant the relief set forth below, except that the tentative ruling is to waive the 14-day stay of Rule 4001(a)(3) (Fed. R. Bankr. P.). Appearances are not required.
Tentative Ruling for 10/27/20:
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
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Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Marcela Antonio MATEO Represented By
R Grace Rodriguez
Movant(s):
Wilmington Trust, National Represented By Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
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DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 41
Debtor(s):
Renita Yvette Russell Represented By
Hasmik Jasmine Papian
Movant(s):
Deutsche Bank National Trust Represented By Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
COASTAL ENDOCRINE, MPPP and LM EQUITIES RETIREMENT TRUST
vs DEBTOR
Docket 9
Grant as set forth below, subject to any opposition and reply at the hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
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exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Curtis George Miller Pro Se
Movant(s):
Coastal Endocrine, MPPP and LM Represented By
Michael Jay Berger
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Cont'd hrg re: Motion for relief from stay [RP] fr. 11/3/20
TOORAK CAPITAL PARTNERS, LLC
vs DEBTOR
Docket 58
Tentative Ruling for 11/10/20:
This matter was continued to this date to allow movant to serve the original borrower, PDP Properties Trust, a California Land Trust, dated November 2, 2018. Movant has done so. Dkt.63. The tentative ruling is to grant the motion as set forth below, subject to any opposition at the hearing.
Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State
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laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain
exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is not sufficient evidence and notice.
No prejudice to Debtor intended. Based on the record, it appears that this might be a "hijacked" case, and that Debtor might be innocent of any involvement. See e.g., In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017) (describing hijacking); In re Dorsey, 476 B.R. 261 (Bankr. C.D. Cal. 2012) (same). In a hijacking case, the Debtor faces the legitimate concern of being subject to a 180-day bar and other adverse consequences if, for example, Debtor later requests and obtains a voluntary dismissal and subsequently needs to file another bankruptcy petition. See, e.g., 11 U.S.C. 109(g)(2), 362(b)(21)(A). There is authority that section 109 "eligibility issues" are nonjurisdictional, can be waived, forfeited, or subject to estoppel, and should not be applied if that would produce an "illogical, unjust, or capricious result, or when the benefit of dismissal would inure to a bad faith creditor." In re Leafty, 489 B.R. 545, 550-51 (9th Cir. BAP 2012) (citing cases including under 109(g)(2)). See also In re Mendez, 367 B.R. 109, 116-17 (9th Cir. BAP 2007); In re Luna, 122 B.R. 575, 577 (9th Cir. BAP 1991); Dorsey, 476 B.R.
261, 270. The same principles apply to any other adverse consequences from a hijacking. Accordingly, the tentative ruling is to condition the relief from the automatic stay granted in this tentative ruling such that no adverse consequences apply to Debtor from the hijacking, including under 11 U.S.C. 109(g)(2) or 362(b)(21)(A). Note: None of the foregoing will shield Debtor if it turns out that Debtor was not, in fact, innocent of any involvement in the
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apparent hijacking or other abusive scheme.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 11/3/20:
Grant in part and continue in part to 11/10/20 at 10:00 a.m., as set forth below. Appearances are not required on 11/3/20.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
As to the requested relief that will remain effective notwithstanding any future bankruptcy case, continue the motion to the date and time set forth at the start of this tentative ruling, for service on the persons who executed the documents through which the movant asserts its interest in the property (sometimes referred to in the mortgage context as the "original borrower").
Reasons: See LBR 4001-1(c)(1)(B). In addition, Judge Bason has due process concerns about granting such relief without service on the person(s) whose interests may be most directly affected. See generally Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (due process generally). In this matter, such persons appear to include: PDP Properties Trust, a California Land Trust, dated November 2, 2018.
Option for shortened time: This Court has selected a continued hearing date that contemplates shortened notice (per Rule 9006) but that date is conditioned on the movant (i) serving, on the day
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after the current hearing date, the motion papers and notice of the continued hearing date, and (ii) filing that notice and a proof of service no later than the next day. Alternatively, the movant may self-calendar a continued hearing on regular notice.
Option for interim/partial order: Movant may elect to lodge a proposed order granting the partial relief provided in this tentative ruling, but any such order must recite that a continued hearing has been set to consider additional relief (or, alternatively, that the movant no longer seeks additional relief and the Clerk's office is requested and directed to take the continued hearing off calendar).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Kelly W Maxwell Pro Se
Movant(s):
Toorak Capital Partners, LLC Represented By Jennifer C Wong
10:00 AM
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
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Adv#: 2:20-01644 McLees v. Almendariz
Docket 5
Debtor(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada
Defendant(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada
Movant(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada Glenn Ward Calsada
Plaintiff(s):
Brian McLees Represented By Dawn M Coulson
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01149 The SAS Creditor Trust v. L.A. Paint and Body Works, Inc. a California
of Pan Injuctions; and 3) Turnover of Property of the Estate [11 U.S.C. Section 542]
fr. 9/15/20
Docket 1
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
L.A. Paint and Body Works, Inc. a Pro Se
Plaintiff(s):
The SAS Creditor Trust Represented By Monserrat Morales
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Docket 389
Approve the Trustee's final report and allow the Trustee $61,120.18 in fees and $1,902.90 in expenses, for a total award of $63,022.98. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
11:00 AM
Movant(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
11:00 AM
for Allowance and Payment of Compensation and Reimbursement of Expenses Covering the Period from November 26, 2019 Through September 30, 2020
Docket 386
Allow Dinsmore & Shohl LLP $362,420.50 in fees and $2,819.12 in costs, for a total interim award of $365,239.62. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Movant(s):
Dinsmore & Shohl LLP Represented By
11:00 AM
Trustee(s):
Ashleigh A Danker
Peter J Mastan (TR) Represented By Ashleigh A Danker
11:00 AM
Docket 376
Allow SLBiggs $10,290 in fees and $73.99 in costs, for a total interim award of $10,363.99. Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Movant(s):
SLBiggs Pro Se
11:00 AM
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
11:00 AM
Docket 393
Appearances required.
Mr. Aimufua seeks leave to withdraw as Debtors' counsel of record in the bankruptcy case and the related adversary proceeding, Mastan v. Ebuehi et al., (Adv. No. 2:20-ap-01633-NB).
Service on Debtors
The proof of service reflects service on the Debtors at a P.O. Box (dkt. 402, PDF p.6), but there is no way for this Court to determine whether that is an appropriate address for service on Debtors. True Debtors appear to have vacated the property that they previously occupied, pursuant to this Court's orders compelling turnover (dkt. 282, 336, 363) and authorizing a sale of their prior residence (dkt. 398). But the docket still lists Debtors' address as that prior residence (619 W. Gladstone Street, Glendora, CA 91740), because Debtors have not complied with Rule 4002(a)(5) (Fed. R. Bankr. P.) requiring them to "file a statement of any change of address."
If this Court is persuaded to authorize withdrawal, the tentative ruling is to direct Mr. Aimufua to file, prior to withdrawing, a statement of specifying both (i) Debtors' new mailing address and (ii) their new street address. See LBR 1002-1.
In addition, as the Chapter 7 Trustee points out (dkt.404, p.3:7-8), service on Debtors was not as directed by this Court. Debtors were not served via overnight mail or personal delivery. The parties are directed to address whether this Court should modify the service requirements to cure that defect, or alternatively if this Court should continue this hearing with a deadline of the day after this hearing to provide notice to Debtors, via overnight mail or personal delivery, of the continued hearing.
Service on all parties
As the Chapter 7 Trustee also points out (dkt.404, p.3:9-20), the motion was not served on Kelly Morrison, Esq. of the Office of the United States Trustee, who has intervened in the adversary proceeding. The parties
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are directed to address whether this hearing must be continued, with a deadline of the day after the hearing to accomplish such service.
Withdrawal
There is no tentative ruling on the merits of the motion to withdraw (dkt. 393, 402, adv.dkt.11), but the parties should be prepared to address whether this Court should grant the motion and whether any such withdrawal should be conditioned on Debtors agreeing to accept service via email in all proceedings. See Trustee Opp. (dkt. 404), p.2:22-27.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
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fees anad/or expenses for Michael R Totaro, Debtor's Attorney
Docket 182
Please see the tentative ruling for the status conference (Calendar No. 1.1, 11/10/20 at 1:00 p.m.).
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Movant(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Trustee(s):
Timothy Yoo (TR) Pro Se
1:00 PM
fr. 4/7/20, 5/5/20, 5/12/20, 6/2/20, 7/28/20, 9/1/20, 9/29/20, 10/27/20
Docket 6
Tentative Ruling for 11/10/20:
Grant, in substantial part, the fee application of Debtor's counsel, as set forth below, and take further status conferences off calendar to save expenses.
Appearances are not required on 11/10/20.
Current issues
Totaro & Shanahan's ("Applicant") fee application (dkt. 182), objection of the United States Trustee ("UST") (dkt. 184), Applicant's reply (dkt. 185)
The tentative ruling is to overrule the UST's objections and allow the fees except as follows, for the reasons stated in Applicant's papers and below:
Task/ comments Requested Allowed
4/12/20 Am. empl. app. 0.9 0.1
Most amendments should not be req'd
4/13/20 "Additional Amendments" 0.3 0.1
Amendments to what? Why needed?
4/15/20 P & File Dec No Party 0.5 0.3
Fill out simple form
7/8/20 Research re CC 1700 1.2 0.8
Mostly special counsel task
7/8/20 Research Rooker/Feldman 4.5 3.5
Same (but BK attys more familiar w/ R/F)
7/9/20 Research FIRREA 3.8 3.2
Same (but BK attys help re FIRREA)
7/10/20 FAC 3.5 2.5
Same
7/10/20 Research elements of C/A 1.9 1.0
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Same
7/11/20 FAC 2.6 1.6
Same
7/11/20 Research slander of title 1.2 0.8
Same
7/12/20 Research FIRREA 1.3 1.0
Same (but BK attys help re FIRREA)
7/13/20 complete FAC 1.3 0.8
Same
Totals: 23.0 15.7
Reduction: 23.0-15.7=7.3; and 7.3hrs x $550.00 = $4,015 Total request (after voluntary $9,000 reduction): $61,345.00. Total allowed: $57,330.00
Additional analysis: (i) Applicant's narrative and task descriptions, while abbreviated, are sufficiently descriptive for present purposes, and this Bankruptcy Court has discretion to excuse some departure from the local rules and forms. (ii) Some overlap of tasks is not only excusable but desirable: part of the task of general bankruptcy counsel is to monitor and guide special counsel on issues that may implicate bankruptcy issues, or as to which familiarity with the Bankruptcy Judge may be helpful. (iii) Based on this Bankruptcy Court's familiarity with the work performed in this case both by special counsel and by bankruptcy counsel, the tentative ruling is that special counsel needed the assistance of bankruptcy counsel to attempt to address concerns raised by parties in interest and this Court. If special counsel were to seek compensation, their need for such assistance would bear whether and how much to award their fees; but as for Applicant's fees the foregoing rationale warrants some overlap regarding litigation issues. (iv) As noted above, this Court's reductions also have taken into consideration Applicant's voluntary reduction of $9,000.00 (as well as the other justifications set forth in Applicant's papers).
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 3/9/20, and converted to chapter
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7 on 9/29/20 (dkt. 174).
Bar date: 6/15/20 (timely served, dkt. 68).
Procedures order: dkt. 10 (timely served, dkt. 22)
Plan/Disclosure Statement*: N/A.
Continued status conference: The tentative ruling is not to set any further status conferences, so as to attempt to save time and expense for all parties. If any party in interest believes that future status conferences would be helpful - e.g., to facilitate oral motions on appropriate matters, such as shortening time for emergency matters - then such party should follow the procedures to contest this tentative ruling.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Parvin Jamali Represented By Yevgeniya Lisitsa
W. Derek May
Trustee(s):
Timothy Yoo (TR) Pro Se
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by Debtor's principal, Wayne Tsang.
Current issues
This Court has reviewed Debtor's status reports (dkt.12, 13) and the other filed documents and records in this case.
Executory contract(s)?
Debtor reports (dkt.12, p.2) that its "sole asset in an income producing contractual interest" and this bankruptcy case was precipitated by arbitration of a contract dispute and "lack of information/income from main asset." This implies that Debtor is a party to a contract that might be executory (although that is not necessarily so). Debtor also reports (dkt.12, p.7) that it has no executory contracts: is that accurate?
Employment application (dkt.16)
In connection with the pending employment application of proposed bankruptcy counsel (dkt.16), Debtor's principal, Mr. Tsang, declares that Alkterra Capital "paid the pre-petition retainer of $76,717.00" to proposed bankruptcy counsel "as a gift" for which it will not seek reimbursement, and that "[o]ther than shared leadership/ownership, Alkterra Capital has no connections to, or claims against, the Debtor." Dkt.16, p.11:10-13 There is no disclosure about the business form of Alkterra Capital.
Supposing that Alkterra Capital is a corporation or similar type of business subject to the laws of California or similar laws, this Court is concerned that investors in Alkterra Capital could in future seek to avoid its gift as a constructively fraudulent transfer, or bring similar claims. That possibility could be used as leverage to influence Mr. Tsang's managment of this bankruptcy estate, or otherwise cause potential conflicts of interest.
Have any investors in Alkterra Capital been fully informed as to its gift to Debtor, and have they provided their written consent, and/or whatever else might be required (e.g., a vote)? Does the gift implicate bankruptcy-related
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concerns in any other ways?
Because it might take time to obtain any responses/authorizations, the tentative ruling is to set the employment application for hearing fairly far in the future, concurrent with the continued status conference (see below). The tentative ruling is not to alter the current deadline for any response to the employment application (14 days after it was filed/served), but to set a supplemental deadline of 12/8/20 for Debtor to file a declaration or other papers addressing this Court's concerns set forth above, and a deadline of 12/15/20 for the United States Trustee to file any response it may elect to file on that issue.
Deadlines/dates. This case was filed, as a Subchapter V case, on 10/19/20.
Bar date: 12/28/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.9)
Procedures order: dkt.4 (timely served, dkt.6).
Plan/Disclosure Statement*: TBD
Note: Although Subchapter V contemplates only a Plan, not a Disclosure Statement, the required form Plan has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so Judge Bason requires that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b). Alternatively, as stated in the Procedures Order, Debtor can request to be excused from using the forms.
*Warning: special procedures apply (see order setting initial status conference).
Continued status conference: 12/22/20 at 1:00 p.m. No written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
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COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Joshuaville, LLC Represented By Leslie A Cohen
Trustee(s):
Moriah Douglas Flahaut (TR) Pro Se
1:00 PM
Docket 136
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 11/10/20:
Appearances are not required on 11/10/20.
Current issues
Debtor's postpetition finance motion (dkt. 136, 137, 141), Yunuen Campos' opposition (dkt. 170), Debtor's reply (dkt.178)
Grant, for the reasons stated in Debtor's reply, subject to the following caveat. As between Debtor and Mr. Fuller, this Court has not altered whatever dollar amounts Debtor must pay to Mr. Fuller to purchase the Fuller Judgments. But as between Debtor and Ms. Campos, pursuant to this Court's Memorandum Decision (dkt.121) and order thereon (dkt.144), the Mediation Term Sheet requires Ms. Campos, under the implied covenant of good faith and fair dealing, to contribute toward any such resolution of the Fuller matters not less than what she had already offered to settle the Fuller matters: $60,000.00. As this Court has explained, this Court has not yet been asked to adjudicate any dispute about the consequences that might arise if Ms. Campos fails to contribute that $60,000.00, or otherwise breaches her agreement embodied in the Mediation Term Sheet. See Memorandum Decision (dk.121), p.8:3-7.
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103), interim order (dkt.138)
The tentative ruling is to grant the Budget motion on a further interim basis (except as modified in section 1(c) below) and set a further continued hearing concurrent with the status conference (see below).
Insider compensation, Debtor's supplemental declaration (dkt. 71),
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Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to continue to pay Ms.
Howerton monthly compensation of $6,000, on an interim basis, and set a further continued hearing concurrent with the status conference (see below) pending additional evidence from Debtor’s accountant.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B). Debtor is directed to attach a copy of this tentative ruling to the proposed order on the postpetition finance motion.
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
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Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 60
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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fr. 8/18/20, 9/15/20, 9/29/20, 10/27/20
Docket 51
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
fees and /or expenses for Eric Bensamochan, Esq attorney for debtor and debtor in possession
Docket 185
Please see the tentative ruling for the post-confirmation status conference (Calendar No. 7, 11/10/20 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
for approval of fees and reimbursement of expenses
Docket 191
Please see the tentative ruling for the post confirmation status conference (Calendar No. 7, 11/10/20 at 1:00 p.m.).
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
6/30/20, 7/28/20, 9/1/20, 11/3/20
Docket 1
Tentative Ruling for 11/10/20:
Appearances required.
Current issues
Post-confirmation progress
As contemplated in this Court's ruling for 11/3/20 (copied below), Debtor is directed to address the status of the contemplated sale of the Honolulu Terrace property. See Plan (dkt.167), p.7.
Eric Bensamochan, Esq.'s first and final fee application (dkt. 185, 186), no opposition on file
Allow Mr. Bensamochan's request for $21,560 in fees and $1,748 in costs, for a total award of $23,308, and authorize and direct payment of the balance due after applying the retainer. In future, counsel is encouraged to state prominently any difference between the dollar amount requested for allowance and the dollar amount requested for payment.
Sub Chapter V Trustee's first and final fee application (dkt. 188, 189, 191), no opposition is on file
Allow the Sub Chapter V Trustee $23,400 in fees and $952.89 in expenses, for a total award of $24,352.89. Pursuant to the Application, Applicant intends to voluntarily reduce the amount of fees paid by $4,870.58 (dkt. 188, p.1:23-26), so authorize and direct payment of $19,482.31 ($24,352.89 - $4,870.58 = $19,482.31).
Proposed orders: Applicants are directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing
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date. See LBR 9021-1(b)(1)(B).
Deadlines/dates
This case was filed on 8/30/19, and Debtors' plan was confirmed on 9/4/20 (dkt. 178). This status conference will be continued to 12/22/20 at 1:00 p.m., subject to possibly being taken off calendar if the sale of the Honolulu Terrace property has closed and there are no issues to address.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 11/3/20:
Continue to 11/10/20 at 1:00 p.m., concurrent with other matters. Appearances are not required on 11/3/20.
Current issues
Status reports
This Court has reviewed the Subchapter V Trustee's final report (dkt.191). In addition, the order confirming Debtor's second amended chapter 11 plan (dkt. 178) directed Debtor to file and serve a post-confirmation status report by 10/20/20 (id., p.5:8-27). This Court has reviewed Debtor's untimely post-confirmation status report (filed 10/27/20) (dkt.194, amended dkt.195).
This Court does not have any issues to raise sua sponte, but Debtor is cautioned that failure to comply with this Court's filing deadlines in future may result in adverse consequences. At the continued hearing Debtor is directed to address the status of the contemplated sale of the Honolulu Terrace property. See Plan (dkt.167), p.7.
Deadlines/dates
This case was filed on 8/30/19, and Debtors' plan was confirmed on
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9/4/120 (dkt. 178).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
1:00 PM
Docket 117
Please see the tentative ruling for the post-confirmation status conference (Calendar No. 9, 11/10/20).
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
Movant(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama Onyinye N Anyama
1:00 PM
Docket 1
Tentative Ruling for 11/10/20:
Continue to 1/12/21 at 1:00 p.m., brief post-confirmation status report due 12/29/20. Appearances are not required on 11/10/20.
Current issues
Anyama Law Firm's final fee application (dkt. 117, 118, 121), no opposition is on file
Approve Anyama Law Firm's request for $10,680 in fees and $601.55 in expenses, for a total final fee award of $11,281.55, subject to Applicant submitting a declaration that complies with LBR 2016-1(a)(1)(J) within 7 days after the hearing.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates
This case was filed on 2/26/20, and Debtor's plan was confirmed on 9/29/20 (dkt. 113).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
1:00 PM
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
1:00 PM
Docket 0
Please see the tentative ruling for the status conference (Calendar No. 11, 11/10/20 at 1:00 p.m.).
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 11/10/20:
Continue as set forth below, with contemporaneous hearings on (1) whether to vacate this Court's approval of the employment of Debtor's counsel, reduce counsel's fees, or take other action, on this Court's own motion, for the reasons stated below, and (2) whether, after balloting, to grant final approval to the Disclosure Statement and confirm the proposed Plan, all as further provided below. Appearances are not required on 11/10/20.
Current issues
Debtor's Amended Disclosure Statement (dkt. 77) & Amended Plan (dkt. 76), Order setting hearing on DS/Am Plan (dkt. 78), proof of service (dkt. 81), no opposition is on file
At the hearing on 9/1/20 this Court discussed with Debtor's counsel that Subchapter V does not dispense with the need to solicit votes. In addition, the order setting this hearing (dkt. 78) set 9/29/20 as the deadline for Debtor to serve ballots (along with the rest of the voting package).
Notwithstanding these express directions, counsel for Debtor did not serve ballots (see dkt.81) and, although the caption of Debtor's proof of service states that it is a proof of service of this Court's order, the Plan, and the Disclosure Statement, the actual proof of service declares only that the proof of service itself was served. See dkt.81.
The tentative ruling is to direct Debtor's counsel to lodge a proposed order, substantially in the form posted on Judge Bason's portion of the Court's website (at www.cacb.uscourts.gov) setting a continued combined hearing on final approval of the Disclosure Statement and confirmation of the Plan, contemporaneous with the continued status conference (see below). The order must include (i) an appropriate deadline to serve that order and serve ballots, another copy of the Plan and Disclosure Statement, and a
1:00 PM
declaration stating that the Plan and Disclosure Statement have not been altered from the copies previously sent (and are being provided for convenience only), (ii) an appropriate deadline for parties in interest to return ballots, or file objections, and (iii) other appropriate deadlines as set forth in the form order.
Proposed order: Movant is directed to lodge a proposed order via LOU within two days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The tentative ruling is to set a contemporaneous hearing, on this Court's own motion, on whether to vacate this Court's approval of the employment of Debtor's counsel, or reduce counsel's fees, or take other appropriate action in response to Debtor's counsel's disregard of this Court's express orders regarding balloting. This Court will prepare that order after this hearing date.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan and Disclosure Statement*: See above.
Continued status conference: 12/8/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 54
Please see the tentative ruling for the status conference (Calendar No. 13, 11/10/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 57
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 10/27/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 11/10/20:
Appearances required.
Current issues
United States Trustee's motion to dismiss, convert or appoint a chapter 11 trustee (dkt. 58, "MTD"), Debtor's opposition (dkt. 70), UST's reply (dkt. 71), continuing compliance order (dkt. 76)
There is no tentative ruling, but the parties should be prepared to address whether Debtor is in full compliance with all of its reporting and disclosure obligations, and has been maintaining regular communications with the Subchapter V Trustee and creditors.
Amended Disclosure Statement (dkt. 55) and Plan (dkt. 54)
There is no tentative ruling. Debtor should be prepared to address what negotiated resolutions, if any, it has reached with creditors regarding Plan treatment.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
AmPlan (dkt. 54)/AmDisclosure Statement (dkt. 55)*: See above.
Continued status conference: 12/8/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 528
Please see the tentative ruling for the status conference (Calendar No. 15, 11/10/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
The Dominguez Firm Represented By Alan J Watson Olivier A Taillieu
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20, 9/15/20, 10/27/20
Docket 323
Continue to 12/1/20 at 1:00 p.m., to be concurrent with the forthcoming motion (dkt.534) to approve a settlement of related matters, and require proof of service of notice of the continuance to be filed no later than 11/12/20, showing service on (a) the plaintiffs in the underlying litigation, Jose Villegas et al., (b) Bohm Law Group, Inc., and (c) any parties in interest who have filed responses to the motion (the DeSimone firm and the Trustee). Appearances are not required on 11/10/20.
Background
Multiple law firms represented personal injury claimants Jose Villegas et al. ("Villegas"). Those firms included Layfield & Barrett, APC ("Debtor"), The Dominguez Firm ("Dominguez"); V. James DeSimone Law ("DeSimone"); and Bohm Law Group, Inc. ("Bohm"). See Opp. (dkt.537), Ex.E, at PDF p.46.
The underlying Villegas personal injury claims were settled for approximately $8,250,000.00. See dkt.534, p.4:9. The total attorney fees of
$3,025,000.00 apparently are being held by DeSimone, and the above- referenced law firms dispute their respective shares of these funds (the "Funds"). See, e.g., Opp. (dkt.537), p.12:17-21 & Ex.I; Settlement Motion (dkt.534), p.4:4-14.
The Chapter 11 Trustee, Richard M. Pachulski ("Trustee"), has asserted that Debtor's bankruptcy estate has a lien on any recoveries. See id., Ex.F, at PDF pp.50-51. Dominguez likewise asserts a lien (see Reply, dkt.541, Ex.5, at PDF p.14) as does DeSimone.
Presumably, Bohm also asserts a share of the Funds, but perhaps only out of whatever DeSimone receives. Bohm's position is not entirely clear
1:00 PM
from the materials reviewed by this Court, and it does not appear to have been served with the relevant papers. See dkt.528, 534, 537. Nor has Villegas been served. Conceivably Villegas or Bohm might know whether yet more law firms claim some sort of an interest in the Funds, although that seems unlikely.
In any event, when there is a limited "pie" of assets, such as the Funds, and the bankruptcy estate asserts an interest in those assets, that appears to be a classic bankruptcy issue for adjudication by this Bankruptcy Court. But in this instance there is a twist.
There is a pending settlement motion (dkt.534) pursuant to which the bankruptcy estate would receive $50,000.00 and would relinquish any interest it has in the remaining $2,975,000.00 of the Funds. That raises jurisdictional issues.
Jurisdictional issues
Disputes regarding the Fund
If the proposed settlement is approved, that would leave only disputes among non-debtor parties. DeSimone has objected that this Bankruptcy Court lacks jurisdiction over that dispute. As summarized by Dominguez:
DeSimone asserts that “Dominguez fails to demonstrate how this Court has jurisdiction over this matter” and, in support, cites to In re Eastport Associates, 935 F.2d 1071, 1077 (9th Cir. 1991); In re
Menk, 241 B.R. 896, 909 (9th Cir. BAP 1999); and Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159, 162 (7th Cir.1994) for the proposition that 28 U.S.C. 1334(b) is not applicable to a dispute concerning two nonparties to a bankruptcy proceeding. [Reply (dkt.541), p.4:9-14.]
Dominguez responds by attempting to distinguish the foregoing authorities and relying on the test for "related to" jurisdiction articulated in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984), adopted by the Court of Appeals for the Ninth Circuit by In re Fietz, 852 F.2d 455, 457 (9th Cir.
1988):
The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. [citations omitted]. Thus, the proceeding need not necessarily be against the debtor or against
1:00 PM
the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or
freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. [Pacor, 743 F.2d 984, 994] [See also Fietz, 852 F.2d 455, 457 (“We conclude that the Pacor definition best represents Congress’s intent to reduce substantially the time-consuming and expensive litigation regarding a bankruptcy court’s jurisdiction over a particular proceeding. The Pacor definition promotes another
congressionally-endorsed objective: the efficient and expeditious resolution of all matters connected to the bankruptcy estate.”) (citations omitted)]
The tentative ruling is that under Feitz and Pacor and the other cases cited above this Bankruptcy Court's jurisdiction is not broad enough to encompass claims as between non-debtor parties to the Fund once the bankruptcy estate no longer has any interest in the Fund. As noted above, if Trustee's settlement motion is granted then that will be the situation.
Accordingly, the tentative ruling is to continue this hearing to be concurrent with the hearing on the settlement motion, with all rights reserved to argue the foregoing jurisdictional issues.
Potential disputes regarding the automatic stay Dominguez also argues:
Finally, issues of Bankruptcy law, prior orders of this Court, and state law are so intertwined that it is simply not feasible to sever the state law claims from those arising from core bankruptcy matters.
Should a state court determine that the alleged termination was invalid, then application of bankruptcy law will be required to determine whether DeSimone violated the automatic stay and whether additional assets may be recovered by this estate. While the Trustee may not be willing to expend estate funds to resolve its claims against DeSimone, Dominguez is willing to litigate those issues to the benefit of both the estate and the Dominguez Firm. [Reply (dkt.541), p.7:20-24.
This Court presumes, solely for the sake of discussion, that as of the petition date the bankruptcy estate had an interest in the prospective contingency fees expected in the underlying litigation, and that DeSimone
1:00 PM
conceivably violated the automatic stay by taking those fees (or other acts). But generally only Trustee has standing to seek relief based on alleged violations of the automatic stay. Trustee has reached a proposed settlement with DeSimone, and assuming for the sake of discussion that any claim for violation of the stay might survive that settlement, it would be up to Trustee to decide whether or not to pursue any such claim (presuming that DeSimone did not persuade this Court to grant retroactive annulment of the automatic stay under 11 U.S.C. 362(d), thereby mooting the issue).
In other words, any alleged implication of the automatic stay appears to be serveral steps removed from any issues between Dominguez and DeSimone regarding their respective alleged interests in the Fund. The tentative ruling is that any potential issues involving the automatic stay are insufficient to give this Bankruptcy Court jurisdiction over disposition of the Fund as between non-debtor parties if the bankruptcy estate has no further interest in the Fund. Again, all rights are reserved to argue the foregoing issues at the continued hearing.
Conclusion
For all of the foregoing reasons, it appears that even if this Court currently has jurisdiction over disputes among Dominguez and DeSimone based on the bankruptcy estate's asserted interest in the Fund, any such jurisdiction will cease to exist if this Court approves Trustee's settlement with DeSimone. Accordingly, the tentative ruling is to continue this hearing to be concurrent with the hearing on that proposed settlement, with all rights reserved to argue all issues raised in the parties' papers and in the foregoing tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
1:00 PM
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Adv#: 2:20-01149 The SAS Creditor Trust v. L.A. Paint and Body Works, Inc. a California
of Pan Injuctions; and 3) Turnover of Property of the Estate [11 U.S.C. Section 542]
fr. 9/15/20
Docket 1
Tentative Ruling for 11/10/20:
Continue to 12/22/20 at 11:00 a.m. pursuant to Plaintiff's status report (adv.dkt.12). Appearances are not required on 11/10/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
L.A. Paint and Body Works, Inc. a Pro Se
1:00 PM
Plaintiff(s):
The SAS Creditor Trust Represented By Monserrat Morales
1:00 PM
fr. 02/28/19, 03/12/19, 03/26/19, 04/09/19, 5/21/19, 05/21/19, 06/04/19, 6/18/19, 7/30/19; 08/06/19,
8/20/19, 9/24/19, 10/15/19, 11/5/19, 12/10/19, 12/17/19,
1/14/20, 1/28/20, 02/18/20, 3/10/20, 03/31/20, 4/21/20,
5/2/20, 7/28/20, 9/29/20
Docket 1
Tentative Ruling for 11/10/20:
Continue to 2/9/21 at 1:00 p.m., based on Debtor's status report (dkt.719, 720), with a brief status report due 1/26/21. Appearances are not required on 11/10/20.
Current issues
This Court has no issues to raise sua sponte.
Deadlines/dates
This case was filed on 2/20/19, and Debtor's plan was confirmed on 5/15/20 (dkt. 630).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
1:00 PM
fr. 10/29/19, 11/5/19, 12/17/19, 1/28/20, 03/31/20, 5/5/20, 7/14/20, 9/15/20
Docket 51
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 11/10/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
Movant(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
1/28/20, 03/31/20, 5/5/20, 6/16/20, 7/14/20, 9/15/20
Docket 1
Tentative Ruling for 11/10/20:
Continue as set forth below. Appearances are not required on 11/10/20.
Current issues
Continued hearing on cash collateral motion (dkt. 51) and stipulation (dkt.61, Ex.A), Debtor's supplemental decl (dkt. 88), interim orders authorizing use of cash collateral (dkt. 80, 100, 113, 124, 143), Hanmi's supplemental statement (dkt. 104)
The tentative ruling is to approve the use of cash collateral on a final basis, on the same terms as previously ordered (subject, as always, to Hanmi's rights to seek relief in the event that Debtor's finances change or there are other grounds to seek to amend the terms for use of cash collateral in order to provide adequate protection).
Proposed order: Hanmi is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 12/14/20 (dkt. 78, 138, 156)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/1/21 at 1:00 p.m., to be concurrent with the motion to dismiss or convert (dkt.160). No written status required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 06/16/20, 7/14/20, 09/01/20, 10/6/20
Docket 1
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Plaintiff(s):
Gilbert Martinez Represented By James A Judge Jivko Tchakarov
Ofelia Argaez de Chuc Represented By James A Judge Jivko Tchakarov
William Garcia Represented By James A Judge
1:00 PM
Jivko Tchakarov
Roberto Melendez Represented By James A Judge Jivko Tchakarov
Barbee Ann Arocho Represented By James A Judge Jivko Tchakarov
Jose Chuc Represented By
James A Judge Jivko Tchakarov
Teresa DeJesus Ramos Represented By James A Judge Jivko Tchakarov
Carlos Canales Represented By James A Judge Jivko Tchakarov
Arturo Avila Represented By
James A Judge Jivko Tchakarov
Froilan Hernandez Lorenzo Represented By James A Judge Jivko Tchakarov
Levi A. Anonuevo Represented By James A Judge Jivko Tchakarov
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 7/14/20, 7/28/20, 09/01/20, 10/6/20
Docket 11
- NONE LISTED -
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Movant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Plaintiff(s):
Gilbert Martinez Represented By James A Judge Jivko Tchakarov
Ofelia Argaez de Chuc Represented By James A Judge
1:00 PM
Jivko Tchakarov
William Garcia Represented By James A Judge Jivko Tchakarov
Roberto Melendez Represented By James A Judge Jivko Tchakarov
Barbee Ann Arocho Represented By James A Judge Jivko Tchakarov
Jose Chuc Represented By
James A Judge Jivko Tchakarov
Teresa DeJesus Ramos Represented By James A Judge Jivko Tchakarov
Carlos Canales Represented By James A Judge Jivko Tchakarov
Arturo Avila Represented By
James A Judge Jivko Tchakarov
Froilan Hernandez Lorenzo Represented By James A Judge Jivko Tchakarov
Levi A. Anonuevo Represented By James A Judge Jivko Tchakarov
1:00 PM
Docket 6
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 6
Tentative Ruling for 11/10/20:
Appearances required.
Current issues
Amended Disclosure Statement ("D/S," dkt. 89), Plan (dkt. 90), and Bankruptcy Schedules I&J ("I&J," dkt.75)
Debtor's D/S cash flow projectsions (dkt.89, Ex.C, at PDF p.10) incorporate by reference Debtor's I&J, with some adjustments. This Court does not follow Debtor's calculations, and the tentative ruling is that it would be better disclosure for Debtor (i) to attach a version of I&J to the D/S (right behind Ex.C), (ii) to make hand-written amendments to I&J to show whatever modifications Debtor is proposing, and (iii) to circle on the stipulations with lienholders the dollar amounts that match those marked up I&J documents. This Court's confusion is outlined below.
The dollar amounts of the mortgage in Schedule J (dkt.75, at PDF p.6, lines 4 & 5) are $3,439.00 for the 1st deed of trust ("DOT") on debtor's residence, $3,069.42 for the 2d DOT, and (id. at PDF p.4) $4,270.55 on the rental property (plus $778/mo. in taxes). In contrast, the stipulation with the holder of the 1st DOT provides ongoing monthly payments of $2,945.53 (including P&I, taxes, and insurance) (dkt.84, p.3:16) and cure payments of
$735.89 (dkt.84, p.3:26) for a total of $3,681.42 per month, and the stipulation with the holder of the 2d DOT (dkt.82, p.3:16) provides for payment of
$4,610.10/mo. ($3,800.00 P&I plus $810.10 for property taxes). It appears that Debtor has added back in $570.00/mo. (dkt.89, Ex.C1, at PDF p.10) to account for a modification in an exhibit "J" (dkt.89, Ex.H, n.C1, at PDF p.22), but no such exhibit "J" appears to be included in the documents reviewed by this Court, and this Court's quick calculations cannot get the dollar amounts to match. Likewise, Debtor has added back $435.45 to make a similar
1:00 PM
adjustment for the DOT on the rental property. See dkt.89, Ex.C1, at PDF p.10, Ex.H, n.C3, at PDF p.22.
This Court's main goals, in requiring use of Local Forms F 3017-1, has been to avoid double-counting debts, and other errors, and avoid "re- inventing the wheel" by using existing forms (I&J) subject to whatever adjustments are needed. The tentative ruling is that hand-written mark-ups of those forms would provide clearer and more accurate calculations; but counsel for all parties in interest are invited to propose whatever methodology will provide clear, accurate, and complete disclosures. The tentative ruling is to set a deadline of 11/20/20 to file those amended documents (but not serve those documents, except on parties who request a copy).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file modified versions (with the modifications clearly indicated, by "blacklining" or other method) by 11/17/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
1:00 PM
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
2:00 PM
9/1/20, 10/6/20
Docket 31
Tentative Ruling for 11/10/20:
Continue as set forth below, per Debtor's request in its status report (dkt.160). Appearances are not required on 11/10/20.
Current issues.
This Court has no issues to raise sua sponte.
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD
Continued status conference: 12/8/20 at 2:00 p.m., with no written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
2:00 PM
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
fr. 07/30/19, 9/24/19, 12/17/19, 02/18/20, 3/3/20, 4/21/20, 9/29/20
Docket 1
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Represented By Michael F Chekian
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
2:00 PM
Docket 134
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 2:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar. No. 5, 9/29/20 at 2:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 8/18/20 at 2:00 p.m.).
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19,
3/10/20, 6/16/20, 8/18/20, 9/29/20
Docket 5
Tentative Ruling for 11/10/20:
Appearances required by counsel for Debtor and the objecting parties.
Current issues
Pre-trial conference
Continue to the same date and time as the continued status conference as set forth below.
Status of plan confirmation
Debtor's status report (dkt. 182) represents that it lodged a joint pre- trial order, but as of the preparation of this tentative ruling, no order is in LOU. The parties should be prepared to discuss those dates and deadlines.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: See above
Continued status conference: 12/8/20 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
2:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required by counsel for the debtor.
Current issues
Pre-trial conference
Continue to the same date and time as the continued status conference as set forth below.
Status of mediation
Debtor is directed to appear to provide an update on the status of mediation efforts.
Missing MORs
As of the preparation of this tentative ruling, Debtor has not filed a monthly operating report for August. Why not?
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: See above
Continued status conference: 11/10/20 at 2:00 p.m., Brief written status report due 10/27/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888)
2:00 PM
882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
Adv#: 2:20-01147 Gonzalez v. MacMillan et al
2. Constructive Fraudulent Transfer [Bankruptcy Code Section 548(1)(b); Cal. Civ. Code Sections 3439.04(B)(2) and 3439.05] 3. To Recover Shareholder Loans 4. For Money Had and Received 5. To Avoid Preferential Payments (11 U.S.C. Section 547)
fr. 9/1/20
Docket 1
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 11/10/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
2:00 PM
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
7/14/20, 7/28/20, 8/18/20, 9/1/20
Docket 43
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 11/10/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 8/18/20, 9/1/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
2:00 PM
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
8/18/20, 9/1/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades Geoffrey M Davis
2:00 PM
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20, 7/14/20, 7/28/20, 8/18/20, 9/1/20
Docket 332
Tentative Ruling for 11/10/20:
Continue all matters to the date set forth below. Appearances are not required on 11/10/20.
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
This Court has no issues to raise sua sponte.
Dates/deadlines
Continue the status conferences and related adversary proceedings on calendar for today to 12/1/20 at 2:00 p.m., concurrent with other matters, with no written status reports required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
2:00 PM
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
fr. 9/1/20, 9/15/20, 9/29/20
Docket 178
Tentative Ruling for 11/12/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 11/12/20 at 9:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
9:00 AM
Disclosure Statement and Confirmation of Plan fr. 6/30/20, 7/28/20, 9/1/20, 9/15/20, 9/29/20
Docket 124
Tentative Ruling for 11/12/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 11/12/20 at 9:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
9:00 AM
fr. 12/17/19, 1/14/20, 02/18/20, 03/31/20, 4/21/20, 5/5/20, 6/30/20, 7/28/20, 9/1/20, 9/15/20, 9/29/20
Docket 1
Tentative Ruling for 11/12/20:
This Court anticipates issuing an order (per the parties' stipulation, dkt.205, 206) tentatively fixing the dollar amount of the claim of Aztec/Rehabbers, approving on a final basis the Disclosure Statement (dkt. 139, 166), and confirming the Plan (dkt.138). Appearances required via ZoomGov.
ZoomGov Instructions Meeting ID: 160 555 3134 Password: 158440
Meeting URL: https://cacb.zoomgov.com/j/1605553134
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Current issues
Objection to Claim 6 (dkt. 178) Deny.
Proposed orders: Debtor is directed to lodge proposed orders via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888)
9:00 AM
882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Candelario Lora Represented By Onyinye N Anyama
10:00 AM
10/23/20
Docket 65
Tentative Ruling for 11/12/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 11/12/20 at 10:00 a.m.).
Tentative Ruling for 10/14/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 10/14/20 at 10:00 a.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
10:00 AM
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
Docket 313
Tentative Ruling for 11/12/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 11/12/20 at 10:00 a.m.).
Tentative Ruling for 10/14/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 10/14/20 at 10:00 a.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 9/29/20 at 2:00 p.m.).
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
10:00 AM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20,
10/14/20, 10/22/20
Docket 1
Tentative Ruling for 11/12/20:
Appearances required via ZoomGov.
ZoomGov Instructions Meeting ID: 161 692 1904 Password: 008720
Meeting URL: https://cacb.zoomgov.com/j/1616921904
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of the Florida Receivership and any plan negotiations.
10:00 AM
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: Based on Debtor's status report (dkt.351), this Court anticipates setting a continued hearing/status conference on 12/8/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[Note: The hearing on 10/6/20 was continued to 10/14/20 (dkt.339)] Tentative Ruling for 10/14/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of
10:00 AM
solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/27/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post- confirmation status conference for 2/9/21 at 2:00 p.m. and a 1/26/21 deadline to file a post-confirmation status report.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"),
10:00 AM
debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
The tentative ruling is that (x) Debtor has adequately addressed Post's objection; (y) Debtor has adequately addressed the non-materiality of her proposed minor modifications to the Plan (i.e., re-balloting is not required); and (z) Debtor has provided sufficient arguments and evidence to overrule most of the Guptas' objections. The Guptas' objections that Debtor has not yet sufficiently addressed are explained below.
Best Interest Test (11 U.S.C. 1129(a)(7)): Debtor's calculations require an adjustment, but even with an adjustment the Guptas have not rebutted Debtor's showing that the Plan satisfies the best interest test
The tentative ruling is that Debtor's alternative liquidation analysis (dkt.335, pp.11-12) should be adjusted to account for the possibility that the secured claim asserted by Patch Of Land ("Patch" or "POL") might be reduced to some extent, based on objections to default interest and other claims by the bankruptcy estate. But the tentative ruling - based on this Court's familiarity with numerous disputes in other cases regarding default rates of interest and other charges - is that the possibility of such reduction, discounted to present value, is less than shortfall in funds that would be availabe in any hypothetical chapter 7 case. See Debtor's Reply (dkt.335),
p.12. See generally, e.g., East-West Bank v. Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019)
The tentative ruling is that a precise dollar estimate is not required because the shortfall is hundreds of thousands of dollars; the discount to Patch's claim would not be greater than that. In other words, even with the adjustment to Patch's claim as described above, there would be $-0- for
10:00 AM
general unsecured creditors in a hypothetical chapter 7 case.
Alternatively, assuming for the sake of discussion that any adjustments to Debtor's liquidation analysis would be enough to provide any projected recovery for nonpriority unsecured creditors, that in itself does not establish that liquidation would be in the best interests of creditors. Rather, the issue would require further evidence because any such projected chapter 7 recovery still would have to exceed the projected recovery under Debtor's proposed Plan, and the latter requires more evidence (as noted below).
Adequate means for implementation (11 U.S.C. 1123(a)(5)) and feasibility (11 U.S.C. 1129(a)(11))
Debtor is directed to address whether she has evidence of sufficient loan commitments and/or gift commitments from family and friends to make her proposed commitments in the Plan adequate and feasible. See, e.g., Debtor's Reply (dkt.335), p.14:2-8. The parties are directed to address whether any evidentiary hearing will be necessary to address the sufficiency of such evidence, and the possible scheduling of any such evidentiary hearing and any related matters.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/6/20 at 2:00 p.m. and/or an evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post-confirmation status conference for 1/12/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
9:00 AM
Adv#: 2:19-01138 Rossil v. Ruan Partida et al
of the Validity, Priority or Extent of Liens and Security Interests
fr. 07/30/19, 9/24/19, 12/17/19, 02/18/20, 3/3/20, 4/21/20, 11/10/20
Docket 1
Debtor(s):
Christian Rossil Represented By Todd B Becker
Defendant(s):
Daniel Ruan Partida Represented By Lazaro E Fernandez
Sergio Salgado Pro Se
Plaintiff(s):
Christian Rossil Represented By Todd B Becker
Trustee(s):
David M Goodrich (TR) Pro Se
8:30 AM
Docket 109
NOTE: For purposes of the deadline to notify opposing counsel/parties of an intent to contest tentative rulings (1/2 the time between the time of posting and the hearing time), the following Tentative Rulings were first posted shortly before:
1:30 p.m. on 11/17/20.
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office and the objecting creditors to continue this matter or (2) withdrawal of the motion by Debtor. The tentative ruling is to deny the motion for the reasons set forth below.
Analysis
This Court has reviewed the objection by siblings and creditors Patricia
A. Kennedy and Vincent J. Kennedy (the "Siblings") (dkt. 111), the response of the Chapter 13 Trustee (dkt. 113) , Debtor's reply (dkt. 120), and the Siblings' unauthorized sur-reply (dkt. 121). As a preliminary matter, the tentative ruling is to strike the unauthorized sur-reply. Nevertheless, the tentative ruling is to deny the motion for the following reasons.
Modification can be requested under 11 U.S.C. 1329. Section 1329(c) usually provides that a plan as modified may not exceed five years, but the CARES Act added section 1329(d), which permits an extension, in certain circumstances, of up to seven years after the first payment under the original plan was due (for chapter 13 plans confirmed prior to 3/27/20).
To be eligible for that extension Debtor must establish that he "is experiencing or has experienced a material financial hardship due, directly or indirectly, to the coronavirus disease 2019 (COVID-19) pandemic" and if the
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modification "is approved after notice and a hearing." (Emphasis added.) The tentative ruling is that Debtor has not established that his alleged financial hardship is in fact due to the pandemic.
First, Debtor asserts that his brother, who has been occupying part of the property, has been making "contributions" to fund the plan but had a reduction in income due to the pandemic and cannot afford to continue with such "contributions" or pay rent. Debtor also asserts that he has been unable to find paying tenants due to the pandemic. Where is the evidence of the brother's financial inability to pay fair rent? Where is the evidence of Debtor's efforts to find a paying tenant (and evict his brother)?
Second, Debtor alleges that his garage is "packed with boxes and other household items, and is not habitable." Reply (dkt.120), p.7:1-3 & Ex.3. Why has it not been possible, since the inception of this case and especially now, to clean up and rent out this space?
There might (or might not) be good explanations for these things. But Debtor fails to address them.
The same concerns apply under section 1325(a), made applicable to any proposed plan modification by section 1329(b)(1). Section 1325(a)(3) requires that "the plan has been proposed in good faith and not by any means forbidden by law." See In re Sunahara, 326 B.R. 768, 772-84 (9th Cir. BAP 2005).
The "good faith" determination "necessarily requires an assessment of a debtor's overall financial condition including, without limitation, the debtor's current disposable income, the likelihood that the debtor's disposable income will significantly increase ..." and any other facts and circumstances bearing on the issue of good faith. Id. at 781-82. For the same reasons stated above, the tentative ruling is that Debtor has not established his good faith.
In sum, Debtor has not satisfied section 1329(d) - by failing to provide enough evidence that it is the pandemic that has made the plan infeasible - nor has he provided sufficient evidence of his good faith under section 1325(a)(3). Therefore the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
8:30 AM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Matthew B. Kennedy Represented By Michael Jay Berger
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 114
- NONE LISTED -
Debtor(s):
Ricardo Rivas Represented By
Ramiro Flores Munoz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 54
- NONE LISTED -
Debtor(s):
Jerry Carpio Represented By
Julie J Villalobos
Joint Debtor(s):
Rosa Carpio Represented By
Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 45
- NONE LISTED -
Debtor(s):
Jose Jesus Garcia Represented By Jaime A Cuevas Jr.
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 68
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 70).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Yeni Ramos Represented By
Lionel E Giron Crystle Jane Lindsey
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 60
Debtor(s):
Percy Burga Represented By
Clifford Bordeaux
Joint Debtor(s):
Dana Lynn Geisler Represented By Clifford Bordeaux
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Hrg re: Motion To Dismiss Chapter 13 Bankruptcy
Docket 19
Appearances are not required. Deny, for the reasons set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
This Bankruptcy Court has jurisdiction notwithstanding that the bankruptcy case has been dismissed and closed (due to Debtor's failure to file any of his missing case commencement documents within the additional time allowed by this Court). See dkt.18, 26. Such jurisdiction always exists, and in any event the dismissal order expressly (dkt.26, para.4) retains jurisdiction on all issues arising under 11 U.S.C. 109(g).
The motion papers (dkt.19) assert that Debtor's failure to file case commencement documents was "willful" within the meaning of section 109(g) (1). But Debtor is appearing without an attorney, and it is possible to file a bankruptcy case in the good faith belief of being able to prosecute it only to discover that such prosecution is difficult.
Movant asserts that there is insufficient equity in the property, but Movant calculates an 8% equity cushion after 8% costs of sale, so the total equity cushion is 16%, which is within the range usually considered to provide adequate protection. Even if Debtor's only viable option was to sell the property, that would be one legitimate reason to file the bankruptcy petition (to maximize the sale price and thereby potentially obtain at least some funds that might be exempt or could be used to pay other creditors). Alternatively, even if there were no equity in the property, and even if Debtor fell behind on past payments, other debtors in similar circumstances have been able to
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confirm plans in chapter 13 or chapter 11. So Debtor's past defaults and allegedly modest equity cushion are not necessarily indicative of any bad faith filing of the bankruptcy petition amounting to a willful failure to appear in proper prosecution.
Movant asserts that Debtor has allowed insurance to lapse and is behind on property taxes. But, first, there is no evidence of that and, second, that is not unusual for debtors in bankruptcy, some of whom successfully reorganize in such circumstances.
Movant asserts that Debtor's indebtedness exceeds the limits permissible for chapter 13. But Debtor is appearing without an attorney and there is no evidence that he was aware of such limits when he filed this case.
For all of the foregoing reasons, the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
David Ko-Hsin Wang Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 13
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Legal Standard
Although there is no explicit statutory authority which permits the Bankruptcy Court to expunge a bankruptcy case from the record, 11 U.S.C. 105(a) allows the Court to "issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title" and, 11
U.S.C. 107(b)(2) provides that upon request of a party to a bankruptcy case, the court may "protect a person with respect to scandalous or defamatory matter contained in a paper filed in a case under this title." Bankruptcy courts have used their authority under these provisions to expunge records of fraudulently filed bankruptcy proceedings. See, e.g., In re Storay, 364 B.R. 194, 196–97 (Bankr. D.S.C. 2006). But cf. In re Whitener, 57 B.R. 707, 709–10 & n.3 (Bankr. E.D. Va. 1986) (declining to expunge bankruptcy case after debtor received chapter 7 discharge but then voluntarily paid all creditors; but citing authority that "[f]ederal courts possess the inherent power to expunge court records when that remedy is necessary and appropriate in order to preserve basic legal rights.") (citations and internal quotation marks omitted).
Application
Debtor in this case asserts that, without his authorization, another individual filed this bankruptcy petition in his name using his social security
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number and previous address. Debtor asserts that he has submitted formal reports to the United States Trustee ("UST") and the Federal Trade Commission regarding the individual he believes filed these unauthorized petitions, and the UST was served with the motion papers (dkt.17, at PDF p.2) and has not disputed that allegation nor opposed the motion. Based on the foregoing, the tentative ruling is to grant debtor's motion for order expunging the records of this bankruptcy case.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
George Anderson Represented By Douglas A Crowder
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 31
Continue to 1/21/21 at 8:30 a.m. at which time this Court does not anticipate hearing oral argument but does anticipate determining when to set this matter for oral argument. Meanwhile, this Court is very sorry to hear that Debtor's counsel has contracted COVID-19. This Court wishes counsel a speedy and full recovery. Appearances are not required on 11/19/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Bela Janos Cseh Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 37
Continue to 12/17/20 at 8:30 a.m. to address the following issues. Appearances are not required on 11/19/20.
Reasons:
Lack of cost/benefit analysis. The posted Procedures of Judge Bason (available at www.cacb.uscourts.gov) provide:
§ 502: claim objections & cost/benefit analysis. When objecting to claims, be sure to include an analysis of whether the costs of preparing and litigating the claim objection (administrative expenses) do not exceed the anticipated benefits (reductions in claims). For example, if the anticipated dividend is small or 0% then the attorney fees incurred in prosecuting your claim objection to any general unsecured claim probably will exceed the benefit to the bankruptcy estate/debtor, so filing that objection would be a waste of the bankruptcy estate's (and everyone else's) resources (unless, for example, the claim is nondischargeable, in which event the attorney fees might well be justified).
No later than 7 days after the date of this hearing the movant must file either:
a supplemental declaration explaining why the attorney fees for this objection are justified (including supporting evidence, such as a copy of the plan showing the projected dividend to the claimant, and a calculation comparing that projected dividend against the attorney fees related to this claim objection), or
a withdrawal of the claim objection.
No fees on this matter, absent specific authorization. Counsel is directed not to charge any fees on this matter (including all past, present and future work related to this claim objection), and to return any fees received on this matter,
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unless and until this Court expressly finds: "Counsel has provided a cost/benefit analysis that is sufficient for purposes of Judge Bason's posted Procedures regarding claim objections." It is counsel's responsibility to include the quoted phrase, if warranted, in the proposed order on this claim objection.
This Court does not have the capacity to monitor all fee applications to assure compliance with the foregoing limitation on fees. But if counsel is found to have disregarded this limitation then this Court may impose sanctions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 53
Continue to 12/17/20 at 8:30 a.m. to address the following issues. Appearances are not required on 11/19/20.
Withdrawal of Counsel. On 10/16/20, Debtor's counsel filed a motion to withdraw as attorney. (dkt. 51). On 11/4/20, this Court set the motion to withdraw as attorney for hearing on 11/19/20. (dkt. 61). In her supplemental briefing, Debtor requested a continuance so that she can find a new attorney. (dkt. 68, p. 3). The tentative ruling is to continue this hearing to 12/17/20 to allow her to retain new counsel, with a deadline of 12/8/20 for Debtor's reply.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Diana Mitra Saidian Represented By Fari B Nejadpour
Trustee(s):
Kathy A Dockery (TR) Represented By Fari B Nejadpour
8:30 AM
Docket 51
Appearances required.
There is no tentative ruling. The parties should be prepared to address the issues raised in this Court's Order on Motion to Withdraw as Counsel (dkt. 61).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Diana Mitra Saidian Represented By Fari B Nejadpour
Trustee(s):
Kathy A Dockery (TR) Represented By Fari B Nejadpour
8:30 AM
fr. 10/22/20
Docket 41
Continue to 2/18/21 at 8:30 a.m. in view of the notice of request for forbearance (dkt.53). Appearances are not required on 11/19/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Dagoberto De Los Angeles Gutierrez Represented By
Lionel E Giron
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 9/24/20
Docket 102
Tentative Ruling for 11/19/20 (same as for 9/24/20):
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee and whether Debtor has sufficiently addressed those concerns (dkt. 109).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Nelson Enrique Gomez Represented By Maria C Hehr
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20, 9/24/20
Docket 49
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
[Claim No. 1 on Court's Claims Register] fr. 10/22/20
Docket 28
Tentative Ruling for 11/19/20:
Deny for the reasons stated in the IRS's opposition (dkt. 36). Appearances are not required.
Proposed order: IRS is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/22/20:
Continue to 11/19/20 at 8:30 a.m. to address the following issues. Appearances are not required on 10/22/20.
Reasons:
Service.
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The motion papers were not served on the Internal Revenue Service in required manner. See Rule 7004(b)(4)&(5) (Fed. R. Bankr. P.); Local Bankruptcy Rule 2002-2(c)(2). Addresses and instructions are included in the Court Manual. Debtor is directed to serve the moving papers in a manner consistent with this ruling and file a proof of service by no later than 10/30/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Gretchen D Zalamea Represented By
Jaime G Monteclaro
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/22/20
Docket 22
Corrected Tentative Ruling for 11/19/20:
Sustain the objection in part, and allow the claim of TY Investment LLC ("TY Investment") in the amount of $137,269.12, as explained below.
Appearances required on 11/19/20.
Key documents reviewed (in addition to motion papers): Debtor’s supplemental memorandum of points and authorities (dkt. 37), TY Investment's opposition (dkt. 40), Debtor’s reply (dkt. 41), Debtor’s objections to Hu & Green Declarations (dkt. 42, 43), TY Investment's sur-reply (dkt. 46), supplemental declarations (dkt. 47), responses to evidentiary objections (dkt. 48, 49), and request for judicial notice (dkt. 50)
Analysis:
Compound interest
This Court’s 10/22/20 ruling (copied below) directed TY Investment to provide an amended calculation of its claim without compound interest (i.e., with simple interest from 1/1/15 through 6/4/20). TY Investment’s sur-reply (dkt.46, pdf p.5:11-21) asserts that the appropriate recalculated amount is
$225,126.75. See also Supplemental Hu Decl., dkt.47, ¶10, Ex.G.
The tentative ruling is that this figure is still incorrect because TY Investment calculated interest on the total balance owing as of 12/31/2014 ($94,831.06) when it acquired the loan (which is the sum of principal, interest, and charges), rather than calculating interest on the original principal balance of $22,444.44 from 1/1/2015 and then adding that figure (and any new charges) to the $94,831.06 figure.
The tentative ruling is to recalculate interest as provided further below.
Statute of limitations
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Debtor contends that the debt is time-barred under California Code of Civil Procedure section 337(a)’s four-year statute of limitations (dkt.41, p.6:8) (citing White v. Moriarty, 15 Cal.App.4th 1290, 1299 (1993)). TY Investment counters that Debtor’s reliance on CCCP section 337(a) is misplaced and argues that the correct statute for determining the applicable statute of limitation is CCCP section 882.020(a), which provides for a 60-year statute of limitations (dkt.46, pp.8:16-10:10).
The tentative ruling is that TY Investment appears to be correct on this issue. See In re Sukhu, 107 B.R. 729, 731 (Bankr. N.D. Cal. 1989) (finding that the "power of sale under a deed of trust remains enforceable" despite expiration of SOL for enforcement of note under CCCP section 337); Miller v. Provost, 26 Cal. App. 4th 1703, 1708 (1994) (same); Manuel v. Shipyard
Holdings, 2001 U.S. LEXIS 18097, at *19 (N.D. Cal. Nov. 2, 2001) (The
limitations period set forth in CCCP section 337 "does not apply to a power of sale exercised under a deed of trust").
Usury
The tentative ruling is that the real estate broker exception set forth in Cal. Civ. C. section 1916.1 (see tentative ruling for 10/22/20, section 6 below for full text) to California’s usury laws applies because TY Investment has provided evidence establishing that (a) Mr. Green, a licensed mortgage broker, arranged and negotiated the Debtor’s loan (b) on behalf of MLS Holdings, Inc. dba Mortgage Loan Solutions (his wholly owned corporation), and (c) Mr. Green expected to receive compensation in the form of a negotiated $3,000 loan fee and any resulting interest. Supplemental Green Decl., dkt.47, ¶¶3-6, Ex.E & RJN, dkt. 50, Ex.A-C.
Calculation of claim
The tentative ruling is that the correct calculation is as follows:
$ 22,444.44 principal per payoff stmt. (dkt.47, Ex.F, at PDF
p.36)
$ 516.40 accrued interest (as of same payoff statement)
$ 64,435.16 unpaid interest
$ 7,110.06 late charges
$ 325.00 unpaid charges (id., at PDF pp.36-37)
$ 94,831.06 subtotal as of 12/31/14
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Plus 21.99% simple interest per annum on the $22,444.44 principal,
from 1/1/15 through 12/31/20 rough estimate of effective date of confirmed chapter 13 plan, i.e., six years. This Court calculates that additional interest at $29,613.19, ($22,444.44 x 0.2199 x 6 = $29,613.19) subject to an adjustment of $13.522 per day for each day before or after 12/31/20 (1/365 x
$22,444.44 x 0.2199 = $13.522).
Plus $1,748.74 advanced to the senior lender. See dkt.47, Ex.G, at PDF p.39.
Plus $223.00 insurance advanced. See id.
Plus $4,246.33 of foreclosure fees paid. See id.
Plus late fees of $173.78 per month x 60 months = $10,426.80 late
fees
For a total of $137,269.12 ($94,831.06 +$29,613.19 +$1,748.74 +$223.00 +
$4,246.33 +$10,426.80).
The tentative ruling is that any objections by TY Investment to the foregoing calculations are waived and forfeited, because TY Investment failed to calculate simple interest, and because any delay in performing these calculations benefits TY Investment by providing it with additional interest at the 21.99% default rate rather than whatever rate will be required for confirmation of Debtor's chapter 13 plan.
Evidentiary objections
As a preliminary matter, it is not clear that Debtor actually contests any of the relevant facts. Counsel for Debtor is cautioned that in these circumstances it appears that making numerous evidentiary objections is only a waste of everyone's time and money and the tentative ruling is that his fees will be reduced accordingly.
On the merits of the objections, the tentative ruling is as follows:
Objections to Qi Hu declaration (dkt. 40, 42)
Overrule nos. 5, 6, 7, 8, 10, 11, 12, 19, 20, 21, 22, 23, 24; Sustain no.
18; and
Overrule as mooted by the supplemental declarations of Messrs. Hu & Green (dkt.47): 1, 2, 3, 4, 9, 13, 14, 15, 16, 17
Objections to Gerald William Green III declaration (dkt. 40, 43)
Overrule nos. 1, 3; Overruled as mooted by supplemental declaration of Mr. Green (dkt.47): 2, 4, 5
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/22/20:
Address the factual and legal issues described below at the hearing, and then continue this matter to 11/19/20 at 8:30 a.m., with a deadline of 11/5/20 for claimant TY Investment LLC ("TY Investment") to file supplemental papers addressing the issues raised in Debtor’s reply and Debtor's evidentiary objections. Appearances required on 10/22/20.
Key documents reviewed (in addition to motion papers): Debtor’s supplemental memorandum of points and authorities (dkt. 37), TY Investment's opposition (dkt. 40), Debtor’s reply (dkt. 41), Debtor’s objections to Hu & Green Declarations (dkt. 42, 43)
Analysis:
Confusing arguments
Some of Debtor’s arguments are not entirely clear. Accordingly, the tentative ruling is that, in addition to the issues discussed below, the parties should be prepared to clarify their factual allegations and focus their legal arguments on all issues.
Reply raises new arguments
This Court has compared Debtor's original papers (dkt.22, 37) with his reply (dkt.41), and notes that Debtor's reply raises issues and arguments not asserted in the original papers. The tentative ruling is that it is not fair to TY Investment, nor to this Court which is put in the position of having to address the issues without the benefit of briefing from TY Investment. Therefore, the tentative ruling is to continue this matter, with the deadline stated at the start of this tentative ruling, for TY Investment to file a sur-reply, supplemental
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evidence and responses to Debtor’s evidentiary objections (dkt. 42, 43).
Notwithstanding the continuance, it appears appropriate to address some issues on a preliminary basis, so that TY Investment may focus its sur- reply papers, and so that both parties can focus their arguments at this hearing and the continued hearing.
Compound interest
The tentative ruling is that Debtor has the better argument regarding compound interest. Debtor argues:
California Civil Code Section 1916-2 provides that lenders may not charge compound interest "unless an agreement to that effect is clearly expressed in writing and signed by the party to be charged therewith." [(dkt.22, p.3:12-16 (emphasis added) (citing McConnell v. Merrill Lynch, Pierce, Fenner & Smith, lnc., 21 Cal.3d 365 (1978); Wishnev v. Northwestern Mutual Life Ins. Co., 162 F.Supp.3d 930 (2016))]
The parties agree that the critical language of the loan documents provides:
FINANCE CHARGE: We will determine and impose a FINANCE CHARGE by applying a daily periodic rate of 0.0548% to the daily unpaid principal balance for the number of days that balance remains unpaid in the billing cycle. The daily periodic rate is the ANNUAL PERCENTAGE RATE of 19.99% divided by 365. To
get the daily unpaid principal balance we will take the beginning balance each day, add any new debits or Cash Loans and subtract any payments or credits. ..." [dkt.22, Ex.A, PDF p.37 (emphasis added) (quoted at dkt.22, p.3:20-25)]
TY Investment argues that this language clearly provides for compounding interest. The tentative ruling is to reject TY Investment’s argument on multiple grounds.
First, a more natural reading of this language is exactly contrary to what TY Investment asserts. The "balance" is more naturally read to mean the principal balance, not principal plus interest (or any other charges).
Similarly, the phrase "any new debits" is more naturally read to mean debts such as payment of the senior lien, not interest (or any other charges).
Second, even if the language could be interpreted to compound interest (which it cannot reasonably be interpreted to do), that is anything but
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"clearly expressed." Cal.Civ.C. 1916-2. It would not be obvious to any reasonable person reading this provision that compound interest was intended.
Third, if there were any doubt about the preceding two points (which there is not) the spreadsheet attached to the proof of claim (dkt.22, Ex.A, pdf pp.18-32) shows that the original lender did not actually compound interest (or other charges), which strongly suggests that this was not the parties' original intent. The principal balance (in the right-hand column) remains the same for long periods of time regardless of such interest (and other charges) that are charged meanwhile (Id.).
Fourth, even if the loan documents could be read to charge compound interest (and add other charges to the principal due), adding such interest (and other charges) to principal would be unconscionable. See Dkt.37, p.16:1-18:9.
Fifth, Debtor asserts that TY Investment never sent a statement of overdue amounts. Dkt. 37, p.5:13-17. Debtor does not cite authority for the effect of that omission, but it appears that Debtor is implicitly arguing estoppel to assert compounding of interest (and other charges) because Debtor presumably could have taken other steps such as refinancing or selling the property if Debtor had known that the debt would balloon so drastically.
For each of the foregoing alternative reasons, the tentative ruling is to sustain Debtor's objection to any compounding of interest.
Statute of Limitations
Debtor contends that the debt is time-barred under California Code of Civil Procedure section 337(a)’s four-year statute of limitations (dkt.41, p.6:8) (citing White v. Moriarty, 15 Cal.App.4th 1290, 1299 (1993)). The tentative ruling is that because this issue was first raised in Debtor’s reply papers, this Court will defer ruling on the issue until TY Investment has had an opportunity to respond.
Registration
Debtor argues at length that various entities involved in the origination and servicing of his loan were not registered with an applicable California agency or otherwise licensed to conduct business at relevant times throughout the history of his loan. But Debtor has not cited any authority establishing that he has standing to object on these grounds, or that the result
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of not being registered is to extinguish some or all of the debt. Accordingly, on this record, this argument is not persuasive.
Real estate broker
California Civil Code section 1916.1 provides, in full:
The restrictions upon rates of interest contained in Section 1 of Article XV of the California Constitution shall not apply to any loan or forbearance made or arranged by any person licensed as a real estate broker by the State of California, and secured, directly or collaterally, in whole or in part by liens on real property. For purposes of this section, a loan or forbearance is arranged by a person licensed as a real estate broker when the broker (1) acts for compensation or in expectation of compensation for soliciting, negotiating, or arranging the loan for another, (2) acts for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business for another and (A) arranges a loan to pay all or any portion of the purchase price of, or of an improvement to, that property or business or (B) arranges a forbearance, extension, or refinancing of any loan in connection with that sale, purchase, lease, exchange of, or an improvement to, real property or a business, or (3) arranges or negotiates for another a forbearance, extension, or refinancing of any loan secured by real property in connection with a past transaction in which the broker had acted for compensation or in expectation of compensation for selling, buying, leasing, exchanging, or negotiating the sale, purchase, lease, or exchange of real property or a business. The term “made or arranged” includes any loan made by a person licensed as a real estate broker as a principal or as an agent for others, and whether or not the person is acting within the course and scope of such license. [Emphasis added.]
"Licensed real estate brokers may be either individuals or corporations; the DRE [California Department of Real Estate] issues licenses to both.
When a license is issued to a corporation, it is through the license of a designated officer of the corporation." Creative Ventures LLC v. Jim Ward & Assoc., 195 Cal.App.4th 1430, 1442 (2011).
Debtor argues that the loan does not qualify for the licensed broker
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exemption from California’s usury prohibition, because TY Investment has failed to submit sufficient evidence on the elements of that exemption See dkt.41, pp.4:16-5:9 & 11:17-13:12 (citing, inter alia, In re Arce Riverside, LLC, 538 B.R. 563 (Bankr. N.D. Cal. 2015), subsequent determination, 2015 WL
9590346 (Bankr. N.D. Cal. 2015); Creative Ventures, 195 Cal.App.4th 1430,
1442 (2011); Winnett v. Roberts, 179 Cal.App.3d 909, 921 (1986)).
The parties are directed to address (a) what elements Debtor asserts are legally required to satisfy section 1916.1 and (b) what evidence TY Investments expects to provide to satisfy each element. For example, Debtor appears to assert that TY Investments:
has not specifically identified what individual or entity allegedly acted as the licensed real estate broker who "made" the loan or "arranged" the loan "for another" for compensation (within the meaning of Cal. Civ. C. 1916.1),
that the individual on whom TY Investments appears to rely, Mr. Gerald William Green III, has not provided evidence that he was "a licensed broker" (dkt.41, p.12:26-27, emphasis added) at the relevant time,
that TY Investments has not provided evidence that Mr. Green was acting as an agent for Mortgage Loan Solutions (dkt.41, p.13:3-9), the entity identified as the lender in the loan agreement (dkt.22 at PDF p.35), as opposed to being an officer of a different entity, MLS Holdings, Inc. (dkt.41, p.13:3-5), and
that Mr. Green acted as "the lender," and hence purportedly is disqualified from having "arranged" a loan for "another" (within the meaning of Cal. Civ. C. 1916.1) (although this allegation appears to be potentially inconsistent with Debtor's assertion that Mortgage Loan Solutions was the lender, and also does not appear to address the exemption for a licensed real estate broker who has "made" a loan).
Evidentiary objections
The tentative ruling is to defer ruling on Debtor’s objections until TY Investment has had an opportunity to provide supplemental declarations and/or arguments addressing the factual and legal issues that Debtor has raised.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Abraham Valencia Represented By Steve Lopez
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 12
Tentative Ruling for 11/19/20:
Appearances required.
This matter was continued to allow time for the parties to meet and confer to jointly select an appraiser. It appears they have been unable to do so to date.
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/22/20:
Appearances required.
This matter was continued to allow time for the junior lienholder to obtain an appraisal of the subject property. This Court has reviewed the parties'
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supplemental papers (dkt. 34, 35 & 39).
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Continue to 10/22/20 at 8:30 a.m. to address the following issues. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Appraisal; date of valuation. The junior lienholder has requested (dkt.
22) additional time to obtain an appraisal. Debtor is directed to provide
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reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria D. Gomez Represented By
Leroy Bishop Austin
Joint Debtor(s):
Jose Meneses Represented By
Leroy Bishop Austin
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Docket 38
Tentative Ruling for 11/19/20:
Continue to 12/17/20 at 8:30 a.m. for the reasons stated in the Status Report (dkt.59) filed by BBV. Appearances are not required on 11/19/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/24/20:
Sustain the claim objection in part, overrule it in part, and continue the hearing, all as set forth below. Appearances required.
Key documents reviewed (in addition to motion papers): BBV Profit Sharing Plan ("BBV") opposition papers (dkt. 40, 41), Debtor’s reply (dkt. 42), BBV’s unauthorized sur-reply (dkt. 43), BBV’s amended proof of claim 6-2 ("AmClaim")
Analysis:
Advances of funds to the senior lienholder
Nonbankruptcy law
The tentative ruling is that Debtor is correct that under nonbankruptcy law a junior lienholder is not authorized to advance more funds than what is
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necessary to cure any arrears on a senior lien (Cal. Civ. Code 2924c(a)(1)) and BBV has not demonstrated that it was necessary to advance $91,930.10 to the senior lienholder, when it appears that the senior lienholder’s arrears as of the petition date were only $47,356.58 (see dkt. 38, Ex.C). Therefore, to the extent the advances exceeded the amount of any default (i.e.,
$91,930.10 - $47,356.58 = $44,573.52), they were unauthorized under nonbankruptcy law.
The parties have not briefed the consequences of making such an unauthorized transfer. One remedy might be for BBV, Debtor, and/or the senior lien holder to seek to unwind BBV's unauthorized payment of
$44,573.52 to the senior lien holder. In that event, presumably, Debtor would once again owe the excess $44,573.52 to the senior debt holder, and BBV's claim would be reduced by that same dollar amount. But that does not appear to have happened, so the question is what consequences follow from BBV's unuthorized payment of the senior debt.
The tentative ruling, in the absence of cited authority from either party, is that California law must be construed so as to treat BBV's payment of the senior debt as an unauthorized loan that attempts to replace the (lower) interest rate under the senior loan documents with the (higher) interest rate under the junior loan documents, and that this is impermissible. BBV has not cited authority that someone who makes a loan without authority to do so can charge any interest on that unauthorized loan. Therefore, the tentative ruling is that BBV cannot charge any interest prior to the effective date of any plan; although, after the effective date, it would have to bear "present value" interest pursuant to 11 U.S.C. 1325(a)(5)(B)(ii). In other words, the senior debt paid by BBV does not simply disappear (which would be a windfall to Debtor), but nor can BBV charge (higher) interest on that debt (which would be a windfall to BBV).
Bankruptcy law
All of the foregoing analysis under nonbankruptcy law may be mooted by the superseding effect of bankruptcy law. It appears that both of BBV's payments are void as a matter of bankruptcy law.
BBV's checks are dated 7/8/20 - the same day that Debtor's prior bankruptcy case was dismissed (Case No. 2:18-bk-18060-NB). This Court presumes for purposes of this discussion that the checks were issued after the dismissal (and therefore this Court will not address whether the checks violated the automatic stay in that prior case). This Court also presumes, for
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purposes of this discussion, that the checks were mailed on or about the same date. But the timestamps reflect that the checks were not received and/or deposited by the senior lienholder until after the 7/10/20 petition date in this current case. The checks apparently were deposited on 7/13/20 and 7/17/20 (see AmClaim, pdf pp. 6-7).
The parties have not briefed which of these dates is relevant, but the tentative ruling is that the date of deposit is the date when BBV's lien against Debtor's real property was increased, and that this constituted a "transfer" of an interest in that property and an "exercise of control" over property of the estate, in violation of the automatic stay of 11 U.S.C. 362(a)(3). Alternatively the tentative ruling is that each transfer constituted an act to obtain "possession" of property of the estate in violation of the other clause of 11
U.S.C. 362(a)(3), or an act to "create, perfect, or enforce a lien" against property of the estate in violation of 11 U.S.C. 362(a)(4). On each of these alternative grounds, BBV's advances violated the automatic stay and therefore are void ab initio. See generally 11 U.S.C. 11 U.S.C. 101(50) ("transfer" defined); cf. In re Lee, 179 B.R. 149, 158-59 (9th Cir. BAP 1995) (date of "transfer" involving perfection of lien, under 11 U.S.C. 547), aff’d 108 F.3d 239, 241 (9th Cir. 1997); In re Hagen, 922 F.2d 742, 745 (11th Cir. 1991) (same); see also In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992) (acts in violation of automatic stay are void).
Note: The tentative ruling is that the transfers also likely constituted avoidable unauthorized postpetition transfers (11 U.S.C. 549(a)), and/or unauthorized post-petition loans (11 U.S.C. 364), which had the effect of replacing a senior encumbrance bearing a low interest rate with BBV’s encumbrance bearing a higher interest rate. But the tentative ruling is that this Court cannot make any ruling on those issues because they would require an adversary proceeding. See Rules 3007(b), 7001(1) (Fed. R. Bankr. P.).
The bottom line is that, in making payments to the holder of the senior lien, BBV violated the automatic stay and therefore both advances are void. BBV argues that there is no harm because Debtor owed the money anyway, but as a practical matter, BBV effectively increased the interest rate that Debtor must pay, which ultimately takes away from any recovery for junior creditors and jeopardizes Debtor's ability to reorganize.
Again, this Court is not ruling that Debtor will receive a windfall. If this Court adheres to the foregoing tentative ruling then the transfers from BBV to
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the senior lien holder were void, so presumably the senior lienholder must return the $91,930.10 to BBV and Debtor's debt to the senior lienholder will increase by that same dollar amount. That said, the senior lienholder has not been made a party to these proceedings, and Debtor has not commenced any proceeding to compel turnover by the senior lienholder (see 11 U.S.C.
542; Rule 7001(1), Fed. R. Bankr. P.). In addition, if BBV's entire $91,930.10 transfers were to be unwound then Debtor might owe additional interest, late charges, and other charges to the senior lienholder, and there might be other consequences.
Accordingly, although the tentative ruling is that BBV's $91,930.10 in advances were void (because, by increasing BBV's lien, they violated the automatic stay), the tentative ruling is that it would be premature to disallow BBV's claim for those funds at this time. Rather, the tentative ruling is to direct Debtor and BBV to meet and confer, and for both of them to communicate with the holder of the senior lien, to attempt to resolve this matter.
Foreclosure and Bankruptcy Attorneys Fees and Costs
Foreclosure fees, costs & interest thereon
The tentative ruling is to overrule Debtor’s objection to BBV’s foreclosure fees, costs and interest because BBV’s response cites the applicable loan provision that purportedly entitles it to collect these fees/costs (dkt. 40, p.8:1-9) and Debtor’s reply does not renew any challenges to these items.
Reasonableness of attorneys’ fees & costs
The tentative ruling is to overrule the objection as to the reasonableness of the amounts charged because BBV’s opposition papers attach time records (dkt. 40, Ex.2, pdf pp. 30-40 & dkt. 41), which appear to provide adequate support for the reasonableness of its fees.
Rule 3002.1(c) (Fed. R. Bankr. P.)
First, the tentative ruling is that it is appropriate for this Court to reach the merits of this issue because although Debtor raised this issue for the first time in her reply papers (a) it appears to be in response to new information provided in BBV’s opposition and (b) there is no prejudice to BBV because it filed the unauthorized sur-reply (dkt. 43) responding to these arguments.
Second, on the merits, the tentative ruling is that Debtor appears to be correct that BBV did not comply with Rule 3002.1(c) by filing timely notices of
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postpetition mortgage fees, expenses and charges in the Prior Case. Although BBV points out (dkt. 43) that any noncompliance was in the Prior Case, the tentative ruling is that for the following reasons this issue is properly raised in this current case.
The tentative ruling is that the burden is on BBV to show why charges that it was supposed to have noticed in the prior case should survive and be chargeable in this case. In addition, if necessary this Court could reopen the prior case and decide the issues in that case instead of in this one, but because this Court presided over the Prior Case that would appear to be form over substance, and any insistence by BBV on parties incurring the expense of reopening might be appropriately charged to BBV as part of this Court's discretion under Rule 3002.1(i) to award "appropriate relief."
All of that said, neither side has cited any authority interpreting Rule 3002.1; Debtor has not shown how she was prejudiced by BBV's nondisclosure of its charges in the Prior Case; and just as Debtor is having another bite at the apple in this current case perhaps BBV should as well - in other words, BBV's apparent violation of Rule 3002.1 does not appear to have caused any cognizable prejudice, and both parties did not fully live up to their obligations in the prior bankruptcy case, so the tentative ruling is that an "appropriate remedy" under Rule 3002.1(i) is probably not to reduce BBV's claim. Therefore the tentative ruling is to overrule Debtor's objection on this ground.
Interest Rate
The tentative ruling is to overrule the objection for the reasons stated in BBV’s opposition papers.
Unapplied funds from Debtor’s prior bankruptcy case
The tentative ruling is that this objection appears to be moot in view of BBV’s filing of an Amended Proof of Claim crediting Debtor for all payments made during the Prior Case.
Conclusion
The tentative ruling is not to adopt any of the foregoing tentative rulings on any final basis, and instead to direct the parties to meet and confer, and communicate with the holder of the senior lien, and meanwhile continue this matter to 10/22/20 at 8:30 a.m.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
Trustee(s):
Kathy A Dockery (TR) Pro Se
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COASTAL ENDOCRINE, MPPP and LM EQUITIES RETIREMENT TRUST
vs DEBTOR
Docket 9
Tentative ruling for 11/19/20:
Appearances required. Terminate the automatic stay in this case, and any
co-debtor stay, and waive the 14-day stay provided by FRBP 4001(a)(3), all in addition to this Court's prior order (dkt.24) granting "in rem" relief applicable to any future bankruptcy case purporting to affect the property.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis:
This Court has reviewed movant's reply (dkt.25) to Debtor's opposition (dkt.16) to the motion, as well as the other filed documents and records in this case. Regarding the disputed valuation of the subject property, the tentative ruling is not to make any finding of fact beyond noting that, even with the valuation in Debtor's bankruptcy schedules, there is not a very large equity cushion. Meanwhile, Movant has presented evidence of Debtor's prior lack of insurance, Debtor's insufficient income to fund any realistic plan, Debtor's multiple bankruptcy cases, and Debtor's lack of proper prosecution of this latest bankruptcy case. The tentative ruling is that the foregoing is more than sufficient "cause" for relief within the meaning of 11 U.S.C. 362(d)(1).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative ruling for 11/10/20:
Grant as set forth below, subject to any opposition and reply at the hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(4).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases.
Grant the following relief pursuant to 11 U.S.C. 362(d)(4) and the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31), as applicable:
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other
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enforcement by the Sheriff or other authorized legal authority.
Note: Per Judge Bason's posted procedures (available at
www.cacb.uscourts.gov) this Court's order will state that the Court "does not make" a finding that Debtor was involved in the "scheme" referenced in section 362(d)(4), unless there is sufficient evidence that Debtor was involved and Debtor is given clear notice that the movant seeks an express finding that Debtor was involved. The tentative ruling in this particular case is that there is sufficient evidence and notice.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Curtis George Miller Pro Se
Movant(s):
Coastal Endocrine, MPPP and LM Represented By
Michael Jay Berger
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
9:00 AM
Adv#: 2:20-01181 Avery v. Yu et al
Mediation hearing [RK Case]
Docket 0
Debtor(s):
Ki Hyong Kim Represented By
Andrew Edward Smyth
Defendant(s):
Kyungmin Yu Pro Se
Ki Hyong Kim Represented By
Andrew Edward Smyth
Plaintiff(s):
Wesley H. Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Pro Se
10:00 AM
US BANK TRUST NATIONAL ASSOC
vs DEBTOR
Docket 42
ZoomGov Instructions for all matters on today’s calendar: Meeting ID: 160 656 8889
Password: 600349
Meeting URL: https://cacb.zoomgov.com/j/1606568889
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Please connect at least 5 minutes before the start of your hearing, and wait with your microphone muted until your matter is called. You do not need to call Chambers for advance approval. ZoomGov appearances are free.
Time when these tentative rulings were first posted (for purposes of determining when anyone contesting the tentative ruling must notify other parties of intent to do so): 10:59 a.m.
Tentative Ruling for In re Caballero [2:16-bk-26291]
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the
10:00 AM
present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Robert Frederick Caballero Represented By Christine A Kingston
Joint Debtor(s):
Dilva Caballero Represented By Christine A Kingston
Movant(s):
US Bank Trust National Association, Represented By
Arvind Nath Rawal Arnold L Graff
10:00 AM
Trustee(s):
Dane W Exnowski
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLON
vs DEBTOR
Docket 37
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Martha Elena Rodriguez Represented By Barry E Borowitz
10:00 AM
Movant(s):
The Bank of New York Mellon as Represented By
Merdaud Jafarnia Jennifer C Wong
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
NEW REZ LLC
vs DEBTOR
Docket 79
Appearances required.
On 11/2/20, this Court entered an order granting debtor's motion to sell the subject property (dkt. 76, dkt. 82), which - as stated in Debtor's response (dkt.84) to the present motion - contemplates paying off Movant's claim in full. Dkt. 76, p.2, para. "3" & Ex.C, p.2. There is no tentative ruling, but Debtor should be prepared to update this Court on the anticipated date of closing.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Martha E Rodriguez Represented By Scott Kosner
10:00 AM
Movant(s):
NewRez LLC d/b/a Shellpoint Represented By Daniel K Fujimoto
Kristin A Zilberstein Cassandra J Richey
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
THE BANK OF NEW YORK MELLO TRUST CO
vs DEBTOR
Docket 40
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44 - erroneously linked on the docket to a different motion).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Victoria Marina Almaraz Represented By Thomas B Ure
10:00 AM
Movant(s):
The Bank of New York Mellon Trust Represented By
Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 37
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 39).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Desiree Michelle Walker Represented By Kahlil J McAlpin
10:00 AM
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT LEASING, LTD
vs DEBTOR
Docket 45
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Timothy Brian Gantner Represented By Matthew D. Resnik
Movant(s):
VW Credit Leasing, LTD Represented By Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALLY FINANCIAL
vs DEBTOR
Docket 57
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 58).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Michael Richard Simmons Represented By
D Justin Harelik
10:00 AM
Movant(s):
Ally Financial Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT LEASING, LTD
vs DEBTOR
Docket 90
Appearances are not required. Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Alexander Karimi Represented By Kevin Tang
Movant(s):
VW Credit Leasing, LTD Represented By Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
HYUNDAI LEASE TILING TRUST
vs DEBTOR
Docket 48
- NONE LISTED -
Debtor(s):
Juan Martin Licerio Represented By Julie J Villalobos
Joint Debtor(s):
Kathy Deanna Rodriguez Represented By Julie J Villalobos
Movant(s):
Hyundai Lease Titling Trust Represented By Sheryl K Ith
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
VW CREDIT LEASING LTD
vs DEBTOR
Docket 38
Appearances are not required. Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Arthur Armando Hernandez Represented By Natalya Vartapetova
Movant(s):
VW Credit Leasing, LTD. Represented By Kirsten Martinez
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
ALLY FINANCIAL
vs DEBTOR
Docket 29
Appearances are not required. Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov
10:00 AM
instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Olivia Pino Represented By
James D. Hornbuckle
Movant(s):
Ally Financial Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 110
Continue to 12/22/20 at 10:00 a.m. to address the following issues. Appearances are not required on 12/1/20.
Reasons:
Service. The proof of service does not show service on the creditors included on the list filed pursuant to Rule 1007(d) as required by Rule 4001(a)
(Fed. R. Bankr. P.).
No later than two days after this hearing, Movant is directed to file and serve a notice of the continued hearing and a proof of service reflecting service in accordance with Rule 4001(a)(1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
10:00 AM
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
Movant(s):
Toyota Lease Trust as serviced by Represented By
Austin P Nagel
10:00 AM
MECHANICS BANK
vs DEBTOR
Docket 7
Appearances are not required. Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Moises Sanchez Portillo Represented By Raymond Perez
Movant(s):
MECHANICS BANK Represented By Vincent V Frounjian
Trustee(s):
Heide Kurtz (TR) Pro Se
10:00 AM
PRD LLC
vs DEBTOR
Docket 57
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
On 6/11/18, Debtor received a discharge (dkt. 20) and this case was closed on 6/12/18. Accordingly, pursuant to 11 U.S.C. 362(c)(1) and 554(c) the automatic stay does not apply post-discharge and closing to either the property at issue in the Motion or in any other respect, except as to the undisclosed asset described in the UST's motion to reopen case (dkt. 25), which is not at issue in this Motion.
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay
10:00 AM
because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Grant the request for retroactive annulment of the stay. See In re Fjeldsted, 293 B.R. 12 (9th Cir. BAP 2003); and see also In re
Williams, 323 B.R. 691, 697-702 (9th Cir. BAP 2005) (various issues involving annulment, and application of Fjeldsted), aff'd, 204 Fed.Appx. 582 (9th Cir.
2006), overruled on other issues, In re Perl, 811 F.3d 1120 (9th Cir. 2016) (scope of automatic stay).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Cristina Magana Represented By
Peter L Nisson - SUSPENDED BK -
Movant(s):
PRD LLC. Represented By
Luke P Daniels
Trustee(s):
Sam S Leslie (TR) Represented By Carolyn A Dye
10:00 AM
Docket 16
Appearances are not required.
Grant, subject to the following conditions.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future
10:00 AM
assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Arturo Zurita Represented By
Matthew D. Resnik
Movant(s):
Arturo Zurita Represented By
Matthew D. Resnik
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 225
- NONE LISTED -
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
Movant(s):
Wilmington Savings Fund Society, Represented By
Lior Katz
10:00 AM
LOGIX FEDERAL CREDIT UNION
vs DEBTOR
Docket 29
Tentative Ruling for 12/1/20:
Appearances required.
At the 11/10/20 hearing, this Court was persuaded to continue this matter to allow the parties to discuss the terms of an adequate protection agreement. There is no tentative ruling, but the parties should be prepared to discuss the progress of these negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Grant as set forth below. Appearances are not required.
Proposed order: Movant is directed to lodge a proposed order via LOU within
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7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Jess Alfred D Mangubat Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Elizabeth Santos Mangubat Represented By
Hasmik Jasmine Papian
10:00 AM
Movant(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
SELECT PORTFOLIO SERVICING INC
vs DEBTOR
Docket 31
Debtor(s):
Suzanne Coleman Represented By Joseph L Pittera
Movant(s):
Select Portfolio Servicing Inc., as Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
MEB LOAN TRUST IV
vs DEBTOR
Docket 32
Tentative Ruling for 12/1/20:
Appearances required.
Based on the arguments and representations of the parties at the hearing on 10/27/20, this Court continued the matter to this date to allow time for the parties to review their accounting. There is no tentative ruling, but the parties should be prepared to update this Court on the status of their investigations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a)
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whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 44).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Katrina Moss Represented By
Barry E Borowitz
Movant(s):
MEB Loan Trust IV, as serviced by Represented By
Austin P Nagel
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
DEUTSCHE BANK NATIONAL TRUST CO
vs DEBTOR
Docket 33
Tentative Ruling for 12/1/20:
Appearances required.
At the 9/15/20 hearing, this court was persuaded to continue the matter to allow the parties to negotiate an agreement regarding the alleged arrears from April to July. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 9/15/20:
10:00 AM
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 8/4/20 hearing, Movant's counsel informed this Court that the notice regarding forebearance (dkt. 37) was for payments from July onward, rather than to address the arrears from April to July. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Continue to 12/8/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.37). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free
10:00 AM
through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/7/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 35).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
10:00 AM
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
Deutsche Bank National Trust Represented By Jennifer C Wong Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
JP MORGAN CHASE BANK, NA
vs DEBTOR
Docket 45
Debtor(s):
Christopher Omotunde Represented By Stephen S Smyth
Movant(s):
JPMORGAN CHASE BANK, N.A. Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 50
Tentative Ruling for 12/1/20:
Grant as provided below. Appearances are not required.
At the 11/3/20 hearing, the Court continued this matter so that Debtor could serve all of the required parties with notice. Debtor has done so. See dkt. 64. The Chapter 13 Trustee filed comments on the motion (dkt. 70) recommending approval of the motion subject to certain conditions. The tentative ruling is to grant the motion subject to those conditions.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/3/20:
10:00 AM
Appearances required.
The tentative ruling is to continue this matter to 12/1/20 at 10:00 a.m., with a deadline of 11/5/20 for Debtor to service notice on all creditors of the continued hearing date and a deadline of 11/17/20 for any oppositions and 11/24/20 for any reply, all for the reasons set forth below. Meanwhile the parties should be prepared to address at this hearing the issues raised in the Order Provisionally Granting Application and Setting Hearing on Shortened Notice (the "OST," dkt. 53) (except for the preliminary title report and local form of notice of sale, which appear to have been sufficiently addressed by dkt. 59, 60).
It appears that a continuance is required based on Debtor's failure to serve the motion papers and OST on all creditors, as required by the OST (dkt.53, p.2) and by Rule 2002(a)(2) (Fed. R. Bankr. P.). See Creditor Matrix and compare J. Flores Decl. (dkt.58) (omitting, e.g., Chrysler Capital, and Capital One Bank). The tentative ruling is that, because the pending motion for relief from the automatic stay (dkt.37) has been continued to 12/8/20 (by oral ruling at the hearing on 10/27/20), and because no other exigency has been shown, there is sufficient time to continue this motion on the schedule set forth at the start of this tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
10:00 AM
Movant(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 49
Appearances are not required.
Approve the Trustee's final report and allow the Trustee $4,943.33 in fees and $133.32 in expenses, for a total award of $5,076.65.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Arnoldo O Martinez Represented By Daniel King
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
Docket 42
Appearances are not required.
Approve the Movant's application and allow the Movant $3,911.50 in fees and
$135.40 in expenses, for a total award of $4,046.90.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Arnoldo O Martinez Represented By Daniel King
Trustee(s):
Carolyn A Dye (TR) Pro Se
11:00 AM
Adv#: 2:20-01633 Mastan, Chapter 7 Trustee v. Ebuehi et al
Docket 1
Appearances required.
This Court has reviewed the parties' joint status report (adv.dkt. 19) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
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Mediation
[Intentionally omitted: it appears that mediation may be unproductive at this time.]
Deadlines
This adversary proceeding has been pending since 9/29/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 2/16/21 deadline. Discovery cutoff (for completion of discovery): 3/2/21.
Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: 4/27/20 Joint Status Report: 4/13/21.
Continued status conference: 4/27/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers, including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
11:00 AM
Debtor(s):
Finnian Osakpamwan Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Defendant(s):
Finnian Osakpamwan Ebuehi Pro Se
Elizabeth Olohirere Ebuehi Pro Se
Joint Debtor(s):
Elizabeth Olohirere Ebuehi Represented By Edwin I Aimufua Joseph Virgilio
Plaintiff(s):
Peter J. Mastan, Chapter 7 Trustee Represented By
Ashleigh A Danker
Trustee(s):
Peter J Mastan (TR) Represented By Ashleigh A Danker
11:00 AM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
Docket 201
- NONE LISTED -
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades Geoffrey M Davis
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
11:00 AM
Peter J Mastan (TR) Pro Se
11:00 AM
Adv#: 2:20-01644 McLees v. Almendariz
Docket 10
Appearances required. Deny.
Proposed order: Plaintiff is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Procedures
This Court has reviewed Plaintiff’s first amended complaint ("FAC," adv. dkt. 9), Defendant/Debtor’s motion to dismiss ("MTD," adv. dkt. 10, 12), Plaintiff’s opposition (adv. dkt. 16), and Defendant/Debtor’s reply (adv. dkt. 17). The legal standards applicable to a motion to dismiss will not be repeated here because they are well known and have been summarized in the parties' filed papers.
Jurisdiction, authority, and venue
This Bankruptcy Court has an independent duty to consider its jurisdiction and its authority to render any final adjudication of the parties' disputes. See generally In re AWTR Liquidation Inc., 547 B.R. 831 (2016). There is a pending action involving the same dispute in the State Court (see RJN, dkt.12), which implicates the issue of abstention.
Normally "[u]pon a timely motion" of any party this Bankruptcy Court would be subject to mandatory abstention pursuant to 18 U.S.C. 1334(c)(2). But no party in interest has made such a motion and this Bankruptcy Court is not inclined to abstain on its own motion (11 U.S.C. 105(a)) because (i) the State Court litigation appears only just to have been commenced before this bankruptcy case was filed; (ii) both parties appear to favor resolution of this issues in this forum, because they have filed papers without raising the
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abstention issue or objecting to this forum; and (iii) there is some question whether the dispute "can be timely adjudicated" in the State Courts (as required by 28 U.S.C. 1334(c)(2)) given their partial shut-down on account of the COVID-19 pandemic. For the same reasons, the tentative ruling is not to apply discretionary abstention under 28 U.S.C. 1334(c)(1).
Choice of law
The parties have not extensively addressed the choice of law issues.
This Bankruptcy Court will apply federal common law, which follows the restatement (second) of conflict of laws section 188. See In re Miller, 292 B.R. 409, 413 (9th Cir. BAP 2003).
Under section 188, "[t]he rights and duties of the parties with respect to an issue in contract are determined by the local law of the state which . . . has the most significant relationship to the transaction and the parties. "
Restatement (Second) of Conflict of Laws § 188(1) (1971) (emphasis added). [T]he contacts to be taken into account to determine the law
applicable to an issue include:
the place of contracting [California and Washington],
the place of negotiation of the contract [California and Washington],
the place of performance [Mexico],
the location of the subject matter of the contract [Mexico, where the real property is located], and
the domicil, residence, nationality, place of incorporation and place of business of the parties [domicil and residence of Defendant/Debtor appear to be California; the domicil and residence of Plaintiff appear to be the State of Washington; the record is unclear as to the parties' nationality; and the parties' places of business appear to be divided between California, Washington, and Mexico].
These contacts are to be evaluated according to their relative importance with respect to the particular issue. [Miller, 292 B.R. 409, 414 (quoting Restatement section 188(2)]
The tentative ruling is that, although there are certainly very strong contacts with Mexico and some contacts with Washington, the focus of the parties' negotiations and oral promises alleged in the Complaint was California. The fact that Plaintiff invested a huge amount of funds in building
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his retirement home, based on alleged promises that apparently involved representations of how to skirt Mexican law that might prohibit foreign nationals' ownership of certain property, stronly suggests that the focus of the parties' negotiations was how to structure a contractual arrangement in California that would not apply Mexican law. Therefore, in testing whether the Complaint can survive a motion to dismiss, it appears most appropriate to apply California law.
11 U.S.C. 523(a)(2)(A): false representation etc.
Defendant/Debtor seeks dismissal of the first claim for relief, under section 523(a)(2)(A), on the ground that Plaintiff has not stated his allegations with particularity, especially in view of Rule 9(b) (Fed. R. Civ. P., incorporated by Rule 7009, Fed. R. Bankr. P.). The issue is what Defendant/Debtor said to Plaintiff and how and why he understood his statements to mean that Plaintiff could maintain his home indefinitely on the land leased from Defendant/Debtor.
Defendant/Debtor also argues (adv. dkt. 10, pdf p.9:15–17) that Plaintiff cannot establish justifiable reliance. The issue is that Mexican law allegedly does not allow leases of land exceeding ten years to foreign nationals if the land is within a restricted zone, and Defendant/Debtor argues that no reliance on alleged promises contrary to that law could be justifiable.
Particularity
Reading the FAC in the light most favorable to Plaintiff, as this Court must do when addressing a motion to dismiss, the tentative ruling is that FAC is sufficiently particular for purposes of Rules 9(b) and 12(b)(6). It alleges that in 2004 oral representations were made that induced Plaintiff to build a home on the land he leased from Defendant/Debtor: Defendant/Debtor "specifically assured" Plaintiff that he (Defendant/Debtor) would "honor" contract "renewal options" in the parties' five year lease, such that Plaintiff could "maintain his home on the property indefinitely, on successive five-year renewal terms, which was vital to Plaintiff's determination to proceed with the project." FAC (adv.dkt. 9), p.3:11-15. Although these allegations certainly could be more specific about the parties' alleged conversation - e.g., did the parties discuss Mexico's restriction on foreign nationals owning property? was there any explanation for not reducing the alleged promise of perpetual renewals to writing? - nevertheless, the tentative ruling is that the allegations are sufficient
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for "notice pleading" purposes, even with the particularity required for allegations of fraud. The details can be addressed through discovery.
Justifiable reliance
The tentative ruling is that Plaintiff has sufficiently pled that his reliance was justifiable. For purposes of section 523(a)(2)(A), justifiable reliance considers the "qualities and characteristics of the of the particular plaintiff, and the circumstances of the particular case, rather than of the application of a community standard of conduct to all cases" (i.e., a "reasonable person" standard does not apply). Field v. Mans, 516 U.S. 59, 71 (1995) (citation omitted).
Defendant/Debtor argues in his motion that the fact that a Mexican law prohibits certain long-term leases to foreigners renders plaintiff’s reliance on Defendant/Debtor's alleged promises unjustifiable. Adv. dkt. 10, pdf p. 13:15. True, the existence of this law might render reliance upon Defendant/Debtor's alleged promises unreasonable. But, for Plaintiff’s reliance to be unjustifiable, he must have been aware of this foreign law, and Defendant/Debtor does not allege that this is the case. In addition, without knowing all the other facts and circumstances - such as the nature of the parties' long-term relationship, their conversations, the exact terms of Mexican law, and Plaintiff's intelligence and knowledge of legal limitations regarding both legal and illegal methods of skirting Mexican law - this Bankruptcy Court lacks sufficient information to be able to assess whether Plaintiff's reliance was justifiable. For purposes of "notice pleading," the FAC provides enough information, and the details can be addressed through discovery.
(5) 11 U.S.C. 523(a)(4): larceny
The Defendant/Debtor seeks dismissal of the second claim for relief, under section 523(a)(4), on the ground that Plaintiff has not alleged with particularity Defendant/Debtor's fraudulent intent in taking Plaintiff’s property and that Plaintiff has failed to allege that Defendant/Debtor directly took plaintiff’s property. MTD (adv. dkt. 10), at PDF p. 14:11–22. But the FAC alleges that in Plaintiff’s absence, and without his permission, Defendant/Debtor used Plaintiff’s home and personal property and/or allowed others to do the same, in exchange for money, which Defendant/Debtor or his agents kept for themselves. FAC (adv. dkt. 9), at PDF p. 5, paras.14–15.
The tentative ruling is that the FAC sufficiently alleges that
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Defendant/Debtor wrongfully took Plaintiff’s personal property with the intent to deprive Plaintiff of that property. Defendant/Debtor cites authority that a federal common law definition of larceny applies for purposes of section 523(a)(4) (MTD, adv. dkt. 10, at PDF pp. 5:23–26, 6:1), which defines larceny as "a felonious taking of another’s personal property with [the] intent to convert it or deprive the owner of the same." In re Ormsby, 591 F.3d 1199, 1205 (9th Cir. 2010) (citation omitted). Whether the federal common law of larceny requires a showing of fraudulent intent apparently remains an open question (id. at 1206) but assuming for purposes of discussion that fraudulent intent must be pled, such intent need not be pled with particularity under Rule 9(b) (Fed. R. Civ. P., incorporated by Rule 7009, Fed. R. Bankr. P.) ("Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally" (emphasis added)).
Defenses of Laches and Statute of Limitations
Defendant/Debtor argues that Plaintiff’s claims are time barred under the applicable statute of limitations and/or the equitable doctrine of laches because Plaintiff became aware of the alleged fraud as early as 2007 and did not bring suit until 2019. The tentative ruling is that Plaintiff’s claims are not time barred.
But Defendant/Debtor does not dispute that "a cause of action for fraud is not deemed to have accrued until discovery by the aggrieved party of the facts constituting the fraud." MTD (adv. dkt. 10), p.7:3–7 (citing Cal. CCP 338(d)). True, the FAC alleges that as early as 2007 Defendant/Debtor sought to alter the terms of the parties' alleged agreement (see FAC, adv. dkt. 9, at PDF p. 4, paras. 11–12; and MTD, adv. dkt. 10, at PDF p.11:10–19), but that is not the same as revealing a lack of intent ever to abide by that agreement in the first place.
In other words, it is a factual issue when Plaintiff was on sufficient notice to start the running of the time bars on any claim based on Defendant/Debtor's alleged intent not to honor his alleged promise of perpetually renewing the five year lease. The tentative ruling is that the MTD has not established sufficient grounds to dismiss the FAC based on any time bar as a matter of law.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada
Defendant(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada
Plaintiff(s):
Brian McLees Represented By Dawn M Coulson
Trustee(s):
Kathy A Dockery (TR) Pro Se
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Adv#: 2:20-01303 Yoo v. Kim et al
Docket 14
Please see the tentative ruling for the status conference (Calendar No. 7, 12/1/20 at 11:00 a.m.).
Debtor(s):
Irene H Kim Represented By
Donald E Iwuchuku
Defendant(s):
Hyong Chan Kim Pro Se
Sunhee Kim Pro Se
Irene H Kim Represented By
Donald E Iwuchuku
Plaintiff(s):
Timothy J Yoo Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
11:00 AM
Adv#: 2:20-01303 Yoo v. Kim et al
fr.11/3/20
Docket 1
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Plaintiff/Trustee's motion for default judgment against Defendants Hyong Chan Kim ("H. Kim") and Sunhee Kim ("S. Kim") (adv. dkt. 14, 15, 16), no opposition is on file
The tentative ruling is to grant the motion and enter default judgment against H. Kim and S. Kim on the 1st, 4th, and 7th through 10th (mis-labeled 9th) claims for relief in the Complaint. See Adv. Dkt. 1.
Untimely status report
The last two joint status reports have been filed late without explanation or acknowledgment of their untimeliness (see adv. dkt. 28 (8 days late) & adv. dkt. 19 (2 days late)). Counsel for both parties are cautioned that their continued failure to timely comply with this Court's deadlines may result in adverse consequences.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties have stated their positions (see adv. dkt. 13, p.4, para. F)
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and, to the extent necessary, this Court has not yet ruled on these issues.
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 8/27/20. The following dates and deadlines apply pursuant to this Court's scheduling order (adv. dkt. 19):
Joinder of parties/amendment of pleadings: 1/22/21 deadline. Discovery cutoff (for completion of discovery): 3/5/21 Expert(s) - deadline for reports: 3/21/21
Expert(s) - discovery cutoff (if different from above): 3/26/21 Dispositive motions to be heard no later than: 5/4/21
Joint Status Report: 4/20/21
Continued status conference: 5/4/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers, including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/3/20:
Appearances required.
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This Court has reviewed the parties' joint status report (adv.dkt. 13) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
[Intentionally omitted: it appears that mediation may be unproductive, at least prior to discovery and narrowing of the issues.]
Deadlines
This adversary proceeding has been pending since 8/27/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 1/22/21 deadline.
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Discovery cutoff (for completion of discovery): 2/5/21. Expert(s) - deadline for reports: 2/12/21.
Expert(s) - discovery cutoff (if different from above): 2/26/21. Dispositive motions to be heard no later than: 4/6/21.
Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers, including direct
testimony by declaration unless excused (see posted forms of order for video trials, on Judge Bason's portion of the Court's web page): TBD (typically 3 court days before trial) (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Irene H Kim Represented By
Donald E Iwuchuku
Defendant(s):
Hyong Chan Kim Pro Se
Sunhee Kim Pro Se
Irene H Kim Represented By
Donald E Iwuchuku
11:00 AM
Plaintiff(s):
Timothy J Yoo Represented By Carmela Pagay
Trustee(s):
Timothy Yoo (TR) Represented By Carmela Pagay
11:00 AM
Adv#: 2:18-01158 Duff v. Quinn
fr. 08/07/18, 11/27/18, 2/5/19, 3/28/19, 06/06/19; 08/08/19, 11/19/19, 02/18/20, 5/20/20, 6/2/20, 7/28/20, 9/15/20
Docket 1
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
Trustee(s):
David M Goodrich (TR) Pro Se
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and (2) Authorizing Trustee to Utilize Services of The United States Marshals to Enforce Court Order"
fr. 10/27/20
Docket 271
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Compensatory sanctions: Second turnover order (dkt. 248), motion for sanctions (dkt. 267), Order to Show Cause ("OSC," dkt. 271), interim Order for coercive and compensatory sanctions ("Interim Order," dkt. 283), Trustee's declaration (dkt. 290), Debtor's response (dkt. 299), Trustee's reply (dkt. 303)
The tentative ruling is to overrule in part and sustain in part Debtor's objections to the compensatory sanctions requested by the Trustee.
Proposed order: The Trustee is directed to lodge a proposed further interim order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's further interim ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Debtor's violation of the Turnover Order is law of the case, and alternatively is established on the record presented
The tentative ruling is to overrule Debtor's opposition to the extent she seeks to re-litigate her purported compliance with the turnover order as of 8/4/20. Any such arguments/evidence are barred by the law of the case: they
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have previously been overruled and/or waived or forfeited in the litigation leading to the issuance of the OSC.
Alternatively, even if this Court were to consider Debtor's allegations and evidence on that issue, she fails to establish that she turned over keys and codes or timely notified the Trustee that she had vacated the premises (if, in fact, she did move out when she alleges she did). Debtor now alleges that she did notify the Trustee that she moved out, but she fails to present any actual evidence of such a notification: her emails (some of which are undated excerps) state only, long after 8/20/20, that "I have obeyed the court order" - although, as this Court has noted before, clearly she had not done so because she had not turned over keys and codes - and that she had notified her own attorneys that she had moved out (dkt. 299, Ex.1, at PDF pp.11 & 15). But the Trustee has presented ample evidence that, in response to the Trustee's simple and direct questions about whether Debtor had moved out and the Trustee's evidence of lights being on, she failed to confirm that she had in fact moved out. See Motion (dkt.267), Ex.3-4 (at PDF pp.35-43). In sum, Debtor has failed to rebut the Trustee's evidence that she did not comply with the turnover order (dkt. 248).
These are not, as Debtor argues, "a few technical violations." Dkt. 299, p.4:18-19 (quoting case summary from Vertex Distrib., Inc. v. Falcon
Foam Plastics, Inc., 689 F.2d 885, 891-92 (9th Cir. 1982) (citation omitted)). Absent notice to the Trustee, and turnover of keys and codes, no effective turnover occurred: the bankruptcy estate was delayed in attempting to clean up, market, and sell the property.
"But for" causation of damages arising from violation of the second turnover order
Debtor is correct that some damages, such as the cost of insurance that pre-dates the second turnover order, is not caused by Debtor's violation of that order. There must be "but for" causation. See GoodyearTire & Rubber Co. v. Hager, 137 S.Ct. 1178 (2017) (rejecting award of all attorney fees, including prior to when sanctionable conduct occurred).
But this Court wonders if Debtor's arguments are missing the forest for the trees. It appears that Debtor ultimately will have to pay all of the costs for which the Trustee seeks reimbursement, so it is unclear what Debtor hopes to gain by litigating each item.
Debtor apparently will have to pay for the insurance and other
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expenses anyway
As the Trustee points out (dkt. 303, p.4:1-4), Debtor's failure to maintain insurance violates a different stipulation and order of this Court. Does Debtor want the Trustee to file another motion, for another OSC, to impose sanctions for violating that separate order?
Even if Debtor were not held in contempt for violating that separate order, would Debtor have grounds to contest the Trustee's insurance expense as a cost of administration? On the record before this Court, there is no reason why such expenses would be disallowed. So, unless the bankruptcy estate turns out to be insolvent, Debtor will pay for all this anyway.
Why would Debtor not offer to stipulate with the Trustee that all reasonable expenses such as insurance are allowable expenses of administration? Debtor's litigation is only increasing the expenses that she herself will have to pay, because those expenses will be deducted from any costs of selling the property (or refinancing it if, contrary to all indications in the record, Debtor has any ability to refinance it).
In this situation, it is difficult to see Debtor's opposition to each request for reimbursement by the Trustee as anything but (i) an attempt to force the Trustee to incur more litigation expenses, on top of the "carrying costs" of all expenses until he is reimbursed, and/or (i) an attempt to cause delay, or to achieve other improper purposes? See Rule 9011 (Fed. R. Bankr. P.).
Debtor is directed to address these issues at the hearing.
"But for" causation
The longer Debtor has delayed her compliance with the turnover order, the more the Trustee was delayed in cleaning up and selling the property.
For example, because Debtor refused to answer the Trustee's simple questions about whether she had vacated the property, and because Debtor failed to turn over keys and codes, the Trustee was forced to obtain the services of the United States Marshal and a locksmith to gain accesss to the premises and to make the premises marketable (Debtor does not explain how the Trustee could market and sell a house with locked doors).
Debtor thus caused a delay from 8/20/20 through at least the date the Trustee was able to arrange for the US Marshal and the locksmith on 11/1/20 (see dkt.303, p.7:7-10 & p.7:15-18), but in actuallity it was a longer delay because Debtor did not remove all of her personal property. Dkt. 303,
p.7:11-14. Therefore, the Trustee was further delayed by having to notify
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Debtor that her property would be removed (dkt. 303, Ex.5) and, when Debtor failed to respond and remove that property, by arranging for and actually removing that personal property, all of which took through 11/15/20. Id., Ensley Decl., pp.8:10-8:9 & & Ex.2E through Ex.5 (at PDF pp.40-55).
In other words, the Trustee has presented evidence of "but for" causation of damages from 8/20/20 (when Debtor was obligated to turn over all keys and codes and notify the Trustee) through 11/15/20. Until the premises were fully turned over, with all personal property removed, not only was Debtor in violation of the second turnover order, but the Trustee was forced to expend funds on a longer period of insurance and other expenses than if Debtor had complied.
To be clear, this Court recognizes that the Trustee could not have sold the property instantaneously, so even if Debtor had fully complied with the turnover order as of 8/20/20, the Trustee would still have had the insurance expense the next day (8/21/20) and subsequent days. But if, for example, it takes 90 days from full turnover of the property to sell it, and Debtor delayed full turnover until 11/15/20, then instead of having to procure insurance for 90 days from 8/20/20, the Trustee had to procure insurance for 90 days from 11/15/20. Therefore, there is "but for" causation.
Having addressed Debtor's "but for" causation argument, this Court turns to each item of compensatory damages sought by the Trustee.
Property insurance
Sustain in part, overrule in part, Debtor's objection and allow insurance for August 20-31 [$2,328.04 / 31 days = $75.098 x 11 days = $826.08], September [$2,328.04] & October [$2,328.04] for a total $5,482.16 [$826.08
+$2,328.04 + $2,328.04 = $5,482.16].
In addition, in connection with the continued hearing set forth below, the Trustee can provide supplemental evidence as to insurance expenses for November, December, January, and later months as appropriate. In addition, as noted above, it appears that the Trustee has multiple avenues to seek reimbursement for all earlier insurance expense. In sum, the foregoing partial award is without prejudice to any request by the Trustee for reimbursement of all other insurance expenses.
Rent
Debtor appears to question whether any rental expense is appropriate,
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because this is not a rental property. Debtor misses the point (or at least pretends to).
The point is that occupancy of property has a measurable value, and the bankruptcy estate has been damaged by not receiving compensation for that occupancy. Among other things, payment of a market rate of "rent" for the premises would help to offset the extent to which the Trustee has to come "out of pocket" to cover insurance and other expenses. Payment of "rent" also helps to compensate the bankruptcy estate for the risks of the real estate market, which is particularly troublesome in this time of uncertainty caused by the COVID-19 pandemic. In other words, there is a risk of a downturn in the real estate market, and the bankruptcy estate is damaged for every day of delay in marketing and selling the property - paying the fair market rate to occupy the property is one way partially to compensate the bankruptcy estate for that damage.
But as to the specific dollar amount, the tentative ruling is to sustain Debtor's evidentiary objections (dkt. 299, p.6:9-15) as to the evidence of the fair market rental value of the property. This Court will provide the parties with the opportunity to file supplemental papers and set a continued hearing as set forth below.
US Marshal
Overrule Debtor's opposition and allow $2,274.35.
Locksmith
Overrule Debtor's opposition and allow $1,446.91.
Brush & tree cleaning
Sustain Debtor's objection in full. This Court's second turnover order (dkt. 248) did not require Debtor to pay costs associated with landscaping cleanup. (Again, however, this appears to be a proper expense of administration, so this Court wonders why Debtor is expending resources to litigate this issue, unless she is doing so for improper purposes such as to impose litigation expenses on the Trustee and cause undue delay.)
Personal property removal
The tentative ruling is that fees and costs incurred to remove all of Debtor's personal property are appropriate compensatory sanctions. See 2d
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Turnover Order (dkt. 248) ("The Debtor and all persons in possession or occupancy with her shall ... cause all of their claimed exempt personal property, including without limitation household furniture, furnishings and to be removed from the Property"). The parties should be prepared to address whether they will stipulate to Trustee's $1,000 estimate or if this Court should set further briefing deadlines once he has evidence of actual costs.
Continued hearing
The tentative ruling is to set a further continued hearing for 1/26/21 at 11:00 a.m. (concurrent with another scheduled matter), with deadlines of 1/5/21 for the Trustee's supplemental evidence of additional insurance expense, the fair market rental rate for the property, and any other supplemental evidence (e.g., costs of personal property removal, if the parties do not stipulate to the dollar amount), 1/12/21 for Debtor's response, and 1/19/21 for the Trustee's reply.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULING OMITTED (see dkt. 283, Ex. 1)]
Debtor(s):
Zeta Graff Pro Se
Trustee(s):
Sam S Leslie (TR) Represented By
11:00 AM
Elissa Miller
1:00 PM
Docket 1
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
Reassignment?
Debtor's 50% owner, Residence Group, Inc., has filed a bankruptcy petition (Case No. 2:20-bk-20261-BR). See dkt. 20 at PDF p.24 (disclosing 50% ownership interest and bankruptcy case). Ordinarily affiliated cases are assigned to the same bankruptcy judge (usually the judge presiding over the lower numbered case), but the bankruptcy petition in the Residence Group case failed to disclose Debtor's bankruptcy case. See In re Residence Group, Inc. (Case No. 2:20-bk-20261-BB), dkt.1, p.2, line 10.
Is there any reason why Judge Bason should not coordinate with Judge Russell about reassignment of one or the other case so that both are before the same judge? Are there any other affiliated bankruptcy cases?
First-Day Motions
Based on this Court's review of Debtor's status reports (dkt. 11 & 13), the tentative ruling is to excuse the usual requirement to file a budget motion (see posted procedures available at www.cacb.uscourts.gov) and other first day motions.
Deadlines/dates. This case was filed on 11/16/20.
Bar date: 1/25/21 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.10).
Procedures order: dkt. 6 (timely served, dkt. 12)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/5/21 at 1:00 p.m. No written status report required.
1:00 PM
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
33 Quincy Avenue LLC Represented By Michael Jay Berger
1:00 PM
Docket 160
- NONE LISTED -
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
1/28/20, 03/31/20, 5/5/20, 6/16/20, 7/14/20, 9/15/20,
11/10/20
Docket 1
Tentative Ruling for 12/1/20:
Continue as set forth below. Appearances are not required on 12/1/20.
Current issues
This Court has nothing to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 12/14/20 (dkt. 78, 138, 156)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/8/21 at 1:00 p.m., to be concurrent with the motion to dismiss or convert (dkt.160). No written status required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the
1:00 PM
first matter on today’s calendar (i.e., page 1 of the posted tentative rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Docket 421
Please see the tentative ruling for the status conference (Calendar No. 5, 12/1/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20, 9/1/20, 9/29/20,
10/6/20, 10/27/20
Docket 1
Tentative Ruling for 12/1/20:
Appearances are not required.
Current issues
Debtor's Motion for Authority to Enter Into Agreements to Modify the Debtor's Existing Senior Secured Loan with East West Bank (dkt. 421, 425, 426), Order shortening time (dkt. 423); no opposition on file
Grant.
Proposed order: Debtor is directed to lodge a proposed order on the foregoing motion via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 dkt. 97 (timely served, dkt. 101).
Procedures order: dkt.18 (timely served, dkt.25)
Plan/Disclosure Statement (dkt. 405, 406)*: Confirmation hearing 12/8/20 at 1:00 p.m. (dkt. 410).
Continued status conference: 12/8/20 at 1:00 p.m., concurrent with other matters No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 534
Please see the tentative ruling for the status conference (Calendar No. 8, 12/1/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 528
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 8, 12/1/20 at 1:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 11/10/20 at 1:00 p.m.).
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
The Dominguez Firm Represented By Alan J Watson Olivier A Taillieu
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20, 9/15/20, 10/27/20, 11/10/20
Docket 323
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Trustee's motion to approve settlement with Dominguez Firm (dkt. 534, the "Settlement Motion"), no opposition is on file
The tentative ruling is to grant the Settlement Motion and approve the settlement.
The Dominguez Firm's ("Dominguez Firm") motion to enforce transition protocol and omnibus procedures order and compel payment (dkt. 528, the "Enforcement Motion"), Trustee's response (dkt. 535), V. James Desimone Law's ("DeSimone Firm") opposition (dkt. 537), Dominguez Firm's reply (dkt. 541), notice of continued hearing (dkt. 543)
If this Court is adopts its tentative ruling approving the Settlement Motion, the tentative ruling is to deny the Enforcement Motion for lack of jurisdiction, for the reasons set forth in this Court's tentative ruling for 11/10/20 (copied below).
Proposed orders: The Trustee & DeSimone Firm are directed to lodge proposed orders on the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
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Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 12/8/20 at 11:00 a.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Continue to 12/1/20 at 1:00 p.m., to be concurrent with the forthcoming motion (dkt.534) to approve a settlement of related matters, and require proof of service of notice of the continuance to be filed no later than 11/12/20, showing service on (a) the plaintiffs in the underlying litigation, Jose Villegas et al., (b) Bohm Law Group, Inc., and (c) any parties in interest who have filed responses to the motion (the DeSimone firm and the Trustee). Appearances are not required on 11/10/20.
Background
Multiple law firms represented personal injury claimants Jose Villegas
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et al. ("Villegas"). Those firms included Layfield & Barrett, APC ("Debtor"), The Dominguez Firm ("Dominguez"); V. James DeSimone Law ("DeSimone"); and Bohm Law Group, Inc. ("Bohm"). See Opp. (dkt.537), Ex.E, at PDF p.46.
The underlying Villegas personal injury claims were settled for approximately $8,250,000.00. See dkt.534, p.4:9. The total attorney fees of
$3,025,000.00 apparently are being held by DeSimone, and the above- referenced law firms dispute their respective shares of these funds (the "Funds"). See, e.g., Opp. (dkt.537), p.12:17-21 & Ex.I; Settlement Motion (dkt.534), p.4:4-14.
The Chapter 11 Trustee, Richard M. Pachulski ("Trustee"), has asserted that Debtor's bankruptcy estate has a lien on any recoveries. See id., Ex.F, at PDF pp.50-51. Dominguez likewise asserts a lien (see Reply, dkt.541, Ex.5, at PDF p.14) as does DeSimone.
Presumably, Bohm also asserts a share of the Funds, but perhaps only out of whatever DeSimone receives. Bohm's position is not entirely clear from the materials reviewed by this Court, and it does not appear to have been served with the relevant papers. See dkt.528, 534, 537. Nor has Villegas been served. Conceivably Villegas or Bohm might know whether yet more law firms claim some sort of an interest in the Funds, although that seems unlikely.
In any event, when there is a limited "pie" of assets, such as the Funds, and the bankruptcy estate asserts an interest in those assets, that appears to be a classic bankruptcy issue for adjudication by this Bankruptcy Court. But in this instance there is a twist.
There is a pending settlement motion (dkt.534) pursuant to which the bankruptcy estate would receive $50,000.00 and would relinquish any interest it has in the remaining $2,975,000.00 of the Funds. That raises jurisdictional issues.
Jurisdictional issues
Disputes regarding the Fund
If the proposed settlement is approved, that would leave only disputes among non-debtor parties. DeSimone has objected that this Bankruptcy Court lacks jurisdiction over that dispute. As summarized by Dominguez:
DeSimone asserts that “Dominguez fails to demonstrate how this Court has jurisdiction over this matter” and, in support, cites to In re Eastport Associates, 935 F.2d 1071, 1077 (9th Cir. 1991); In re
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Menk, 241 B.R. 896, 909 (9th Cir. BAP 1999); and Zerand-Bernal Group, Inc. v. Cox, 23 F.3d 159, 162 (7th Cir.1994) for the proposition that 28 U.S.C. 1334(b) is not applicable to a dispute concerning two nonparties to a bankruptcy proceeding. [Reply (dkt.541), p.4:9-14.]
Dominguez responds by attempting to distinguish the foregoing
authorities and relying on the test for "related to" jurisdiction articulated in Pacor, Inc. v. Higgins, 743 F.2d 984, 994 (3d Cir.1984), adopted by the Court of Appeals for the Ninth Circuit by In re Fietz, 852 F.2d 455, 457 (9th Cir.
1988):
The usual articulation of the test for determining whether a civil proceeding is related to bankruptcy is whether the outcome of the proceeding could conceivably have any effect on the estate being administered in bankruptcy. [citations omitted]. Thus, the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate. [Pacor, 743 F.2d 984, 994] [See also Fietz, 852 F.2d 455, 457 (“We conclude that the Pacor definition best represents Congress’s intent to reduce substantially the time-consuming and expensive litigation regarding a bankruptcy court’s jurisdiction over a particular proceeding. The Pacor definition promotes another
congressionally-endorsed objective: the efficient and expeditious resolution of all matters connected to the bankruptcy estate.”) (citations omitted)]
The tentative ruling is that under Feitz and Pacor and the other cases cited above this Bankruptcy Court's jurisdiction is not broad enough to encompass claims as between non-debtor parties to the Fund once the bankruptcy estate no longer has any interest in the Fund. As noted above, if Trustee's settlement motion is granted then that will be the situation.
Accordingly, the tentative ruling is to continue this hearing to be concurrent with the hearing on the settlement motion, with all rights reserved to argue the foregoing jurisdictional issues.
Potential disputes regarding the automatic stay
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Dominguez also argues:
Finally, issues of Bankruptcy law, prior orders of this Court, and
state law are so intertwined that it is simply not feasible to sever the state law claims from those arising from core bankruptcy matters.
Should a state court determine that the alleged termination was invalid, then application of bankruptcy law will be required to determine whether DeSimone violated the automatic stay and whether additional assets may be recovered by this estate. While the Trustee may not be willing to expend estate funds to resolve its claims against DeSimone, Dominguez is willing to litigate those issues to the benefit of both the estate and the Dominguez Firm. [Reply (dkt.541), p.7:20-24.
This Court presumes, solely for the sake of discussion, that as of the petition date the bankruptcy estate had an interest in the prospective contingency fees expected in the underlying litigation, and that DeSimone conceivably violated the automatic stay by taking those fees (or other acts). But generally only Trustee has standing to seek relief based on alleged violations of the automatic stay. Trustee has reached a proposed settlement with DeSimone, and assuming for the sake of discussion that any claim for violation of the stay might survive that settlement, it would be up to Trustee to decide whether or not to pursue any such claim (presuming that DeSimone did not persuade this Court to grant retroactive annulment of the automatic stay under 11 U.S.C. 362(d), thereby mooting the issue).
In other words, any alleged implication of the automatic stay appears to be serveral steps removed from any issues between Dominguez and DeSimone regarding their respective alleged interests in the Fund. The tentative ruling is that any potential issues involving the automatic stay are insufficient to give this Bankruptcy Court jurisdiction over disposition of the Fund as between non-debtor parties if the bankruptcy estate has no further interest in the Fund. Again, all rights are reserved to argue the foregoing issues at the continued hearing.
Conclusion
For all of the foregoing reasons, it appears that even if this Court currently has jurisdiction over disputes among Dominguez and DeSimone based on the bankruptcy estate's asserted interest in the Fund, any such jurisdiction will cease to exist if this Court approves Trustee's settlement with
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DeSimone. Accordingly, the tentative ruling is to continue this hearing to be concurrent with the hearing on that proposed settlement, with all rights reserved to argue all issues raised in the parties' papers and in the foregoing tentative ruling.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
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Docket 0
Tentative Ruling for 12/1/20:
Appearances are not required.
Current issues
Application to employ Ramsaur Law Office as general bankruptcy counsel (dkt. 31), supplemental Ramsaur declaration (dkt. 32), order setting hearing (dkt. 37), supplemental declarations of Ramsaur, Djaafar & Sudwikatmono (dkt. 40)
The tentative ruling is to grant the Employment Application, effective as of 9/15/20, subject to this Court's standard employment terms. The tentative ruling is also to disapprove the purported waiver by Debtor/the bankruptcy estate of any actual or potential conflicts (See Ex.3, pp.15-16).
Proposed order: Debtor is directed to lodge a proposed order incorporating the foregoing terms via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Monthly operating reports ("MORs")
As of the preparation of this tentative ruling, Debtor has not filed MORs for September or October or a declaration addressing whether the UST has excused Debtor from filing MORs. Debtor is cautioned that failure to address this issue prior to the next status conference might be cause for dismissal, conversion of this case to chapter 7, or other relief.
Missing creditors
Debtor appears to have cured (dkt. 24, 25) the issues regarding missing creditors noted in this Court's tentative ruling for 10/6/20 (reproduced below, section (2)(a)).
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Deadlines/dates. This case was filed on 9/15/20.
Bar date: 12/7/20 (dkt.23; timely served, dkt.25)
Procedures order: dkt.4 (timely served, dkt.6, supplemented by dkt.21)
Plan/Disclosure Statement*: file by 1/13/21 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/26/21 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/6/20:
Appearances required by counsel for Debtor and by Debtor's principal.
Current issues
The Debtor's status report (dkt. 14, p.2, para. 2) states that Debtor "owns a single asset- one parcel of real property located at 701 N. Hillcrest Road, Beverly Hills, CA 90210," which Debtor intends to market and sell.
Debtor's Bankruptcy Schedule A/B and Statement of Financial Affairs ("SOFA") describe that property as residential property worth $20,000,000.00 (dkt.19, line 55, at PDF p.7) at which Debtor's sole equity interest holder and her children reside rent-free (although her mailing address is in Indonesia).
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Dkt.19-1, at PDF p.15, and dkt.19-2.
Procedures order and mailing matrix
The Procedures Order (dkt.4) directed Debtor to serve a copy of that order on all parties in interest, but Debtor's proof of service (dkt.6) appears to omit (i) at least one (disputed) creditor - Medallion Capital Financial (Schedule E/F, line 3.2, dkt.19 at PDF p.15); (ii) Debtor's sole equity interest holder/creditor (id., line 3.1); and (iii) Debtor's director, Andre Djaafar (SOFA, line 28, dkt.19-1 at PDF p.13). Debtor's mailing matrix also omits at least those parties.
The tentative ruling is to set a deadline of 10/8/20 for Debtor to file (x) a proof of service on all parties in interest who were not originally served with the Procedures Order and (b) an amended mailing matrix.
Single Asset Real Estate Case?
Debtor does not disclose if there are fewer than four residential units at the property. Debtor is directed to address at the status conference whether it should have designated itself as a single asset real estate ("SARE") debtor (11 USC 101(51B)) and, if so, whether its proposed date for filing a plan is consistent with 362(d)(3).
Deadlines/dates. This case was filed on 9/15/20.
Bar date: 12/7/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt. 4 (timely served, dkt.6, but see item "(1)(a)" above)
Plan/Disclosure Statement*: file by 1/13/21 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
New Hillcrest Inc., a Cayman Island Represented By
Brett Ramsaur
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Adv#: 2:20-01641 Campos v. Kennedy
Docket 5
- NONE LISTED -
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Defendant(s):
John Martin Kennedy Represented By Sandford L. Frey
Plaintiff(s):
Yunuen Campos Represented By Lauren A Dean
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Adv#: 2:20-01626 Campos v. Kennedy
Docket 1
Appearances required.
This Court has reviewed the parties' joint status report (adv.dkt. 4) and the other filed documents and records in this adversary proceeding.
Current issues
Defendant (Debtor) suggests in the status report that this Court stay all proceedings in this adversary proceeding, because his forthcoming chapter 11 plan may moot some or all issues in this adversary proceeding. Plaintiff (Ms. Campos) suggested in the status report that such issues must be decided before any plan can be confirmed.
The parties are directed to clarify the following issues. (1) Does Plaintiff (Ms. Campos) assert that, under nonbankruptcy law, the assignment order created an absolute assignment in Debtor's accounts receivable ("A/R"), or a security interest, or both?
Does she assert those things not only as to (a) A/R embodied in checks that had been issued prepetition (from medical insurers and Medicare prepetition), but also (b) A/R arising from services that had been performed prepetition, but as to which checks had not been issued as of the petition date (i.e., as to which such an interest arguably had not attached as of the petition date), and also (c) A/R arising from services that had yet to be performed as of the petition date? Phrasing these last two issues differently, is Plaintiff asserting that, under nonbankruptcy law, 25% of any checks that had yet to be cut, and 25% of any A/R that had yet to generated by Debtor's postpetition labor, belongs to Plaintiff, regardless of any interest of, for example, a different judgment creditor who obtained a judicial lien against the A/R and also claimed the same 25%?
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Under the Bankruptcy Code, is Plaintiff asserting that her alleged
interest in each of the three types of A/R described above is superior to the interests of the bankruptcy estate, other creditors, and any exemptions that Debtor may assert in the A/R?
Depending on Plaintiff's responses, Defendant (Debtor) is directed to address how he can propose a chapter 11 plan without resolving the issues raised in this adversary proceeding. Does Defendant (Debtor) anticipate proposing payment terms (e.g., payment over a time period consistent with the parties' Term Sheet) without resolving whether such payment is secured by the A/R, or whether Plaintiff (Ms. Campos) owns the A/R? Is it possible to confim a plan that leaves such issues unresolved?
The tentative ruling is to direct the parties to address on a preliminary basis how the foregoing issues bear on whether or not to stay these proceedings. Then the tentative ruling is to continue this matter as set forth below, so that all of these issues can be better addressed after Debtor has proposed a chapter 11 plan.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014)
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(authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
[Intentionally omitted: it appears that mediation may be unproductive at this time.]
Deadlines
This adversary proceeding has been pending since 9/23/20. Joint Status Report: 1/19/21.
Continued status conference: 1/26/21 at 1:00 p.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Defendant(s):
John Martin Kennedy Pro Se
Plaintiff(s):
Yunuen Campos Represented By Lauren A Dean
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fr. 9/15/20, 9/29/20, 10/27/20, 11/10/20
Docket 60
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 12/1/20 at 1:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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fr. 8/18/20, 9/15/20, 9/29/20, 10/27/20, 11/10/20
Docket 51
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 12/1/20 at 1:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 35, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar No. 42, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 9/15/20 at 1:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 8/18/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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Docket 1
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Campos v. Kennedy (Adv. No. 2:20-ap-01626-NB)
As set forth in the tentative ruling for this matter (calendar no. 12, 12/1/20 at 1:00 p.m.), the parties are directed to address (i) the scope of Ms. Campos' asserted interest in pre- and postpetition accounts receivable and
(ii) whether or not to stay this adversary proceeding until after any litigation on whether to confirm Debtor's forthcoming chapter 11 plan.
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103), interim order (dkt.138)
The tentative ruling is to grant the Budget motion on a further interim basis, on the same terms as before, and with a continued hearing on 1/26/21 at 1:00 p.m., but with a caution to Debtor that the promised analysis by his accountant must be completed so that Ms. Campos can file and serve a supplemental response, Debtor can file and serve a supplemental reply, and this Court can make a final ruling on this motion.
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to continue to pay Ms.
Howerton monthly compensation of $6,000, on an interim basis, as previously provided, with the same continued hearing date and the same caution as set forth above regarding the budget motion.
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Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/8/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
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Docket 1
Tentative Ruling for 12/1/20:
Continue as set forth below. Appearances are not required on 12/1/20.
Current issues
This Court has no issues to raise sua sponte at this time. At the hearing on 10/27/20 Debtor confirmed that it is not operating, and Debtor appears to have cured the deficiencies noted in the tentative ruling for 10/27/20 (reproduced below) regarding the lack of a "corporate" ownership statement (dkt.18) and lack of a resolution (dkt.19) authorizing the filing of this case.
Deadlines/dates. This case was filed on 9/30/20.
Bar date: 12/15/20 (dkt. 15; timely served, dkt. 17).
Procedures order: dkt. 2 (notice at dkt. 16)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/26/21 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the
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first matter on today’s calendar (i.e., page 1 of the posted tentative rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required by counsel for the debtor and by debtor's principal.
Current issues
Untimely status report & no proofs of service of status report or procedures order
This Court's order setting principal status conference and setting various procedures (the "Procedures Order," dkt. 2) required Debtor to serve that order on all parties in interest and file a proof of service at least 14 days before the principal status conference. As of the preparation of this tentative ruling, no proof of service is on file.
The Procedures Order also directed Debtor to file a status report using Local Form F 2081-1.1.C11.STATUS.RPT, serve it on all parties in interest, and file a proof of service at least 14 days before the principal status conference. On 10/15/20, Debtor belatedly filed a status report, but the proof of service is blank.
Accordingly, the tentative ruling is to set a deadline of 10/30/20 for Debtor to file and serve a Notice, with copies of the Procedures Order and Status Report attached as exhibits, informing all parties that "Debtor failed to serve the Procedures Order and Status Report on all parties in interest as directed by the Bankruptcy Court, which may have prejudiced some parties. The Bankruptcy Court has directed Debtor to serve this Notice, with copies of the Procedures Order and Status Report, on all parties in interest, to inform all parties of the procedures in the Procedures Order and Debtor's progress in this case to date, and so that any party who was prejudiced by the lack of earlier notice has an opportunity to seek any appropriate relief."
In addition, Debtor is cautioned that failure to comply with this Court's orders in future, or other failure to abide by Debtor's obligations, may result in adverse consequences.
Budget motion
Debtor's status report states that a budget motion is not required by the presiding judge's procedures. Dkt. 13, p.3. That is wrong (see posted
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Procedures of Judge Bason, available at www.cacb.uscourts.gov), and Debtor is cautioned not to misstate this Court's procedures.
Nevertheless, the tentative ruling is to direct Debtor to appear to address whether this Court should excuse the requirement of a budget motion, in view of Debtor's representations in the status report that give the appearance that Debtor is not operating.
"Corporate" ownership statement, and resolution
Debtor asserts (dkt.13, p.2, item A.3.) that the above-referenced documents are not required because Debtor is a partnership, not a corporation. That is wrong. The Bankruptcy Code defines "corporation" to include a "partnership ...." 11 U.S.C. 101(9)(A)(ii). The tentative ruling is to set a deadline of 10/30/20 for Debtor to file those things.
Deadlines/dates. This case was filed on 9/30/20.
Bar date: 12/15/20 (DO NOT SERVE notice yet - court will prepare an order after the status conference).
Procedures order: dkt.2 (no proof of service as of the preparation of this tentative ruling)
Plan/Disclosure Statement*: TBD.
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
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Debtor(s):
Bethany Senior Housing II, LP Represented By Simon J Dunstan
1:00 PM
Docket 48
Debtor(s):
Mario Jacquette Howard Represented By Michael R Totaro
1:00 PM
fr. 3/3/20, 3/10/20, 4/7/20, 4/21/20, 6/2/20, 7/14/20, 7/28/20, 8/18/20, 9/1/20, 10/6/20, 10/27/20
Docket 1
Tentative Ruling for 12/1/20:
Appearances required by counsel for the debtor.
Current issues
Amended bankruptcy schedules I and J (dkt.249)
Debtor's amended schedules are much more clear. Unfortunately, they raise concerns: (i) Debtor has been subsidizing his mother's bankruptcy case (nearly $14,000 per month), and this Court does not recall any notice to creditors or authorization for such expenditures; and (ii) Debtor is paying management fees and other commissions/expenses, and this Court does not recall any notice about the recipient(s), their connections with Debtor (are they insiders?), or authorization (if the managment contracts and other arrangements are not continuation of prepetition ordinary-course arrangements). Debtor is directed to address these issues at the status conference. Other parties in interest are invited to address what remedies this Court should impose, including whether this Court should convert or dismiss this case.
Cash collateral: declaration re 2d default (the "Default Decl.," dkt.245), Debtor's response (dkt.248), order setting hearing (dkt.256)
The Default Decl. shows a second default on the stipulation for use of cash collateral (dkt. 62, 64). The IRS notified Debtor of $8,350.00 in missed payments for August and September 2020, with a deadline of 10/8/20 to cure the default, plus a subsequent missed payment of $4,500.00 for October 2020, for a total arrearage of $12,850.00.
In response, Debtor declares that he sent payments totaling $8,350.00 on 11/13/20 and is no longer in default. Debtor did not address the IRS's allegation that he failed to make the October payment.
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There is no tentative ruling, but the parties are directed to address the current status of the arrears.
Motion for Wilmington Savings Fund Society, FSB ("Wilmington") for relief from automatic stay (dkt.225); Debtor opposition (dkt.240); Wilmington's reply (dkt.259)
There is no tentative ruling, but Debtor is directed to provide an oral report on whether the sale of the subject property has closed and Wilmington's claim has been paid in full.
Amended plan (dkt.251) and Disclosure Statement ("D/S," dkt.250) and blacklines (dkt.253, 252), and request for judicial notice ("RJN," dkt.254)
The parties are directed to address (i) whether Debtor's apparently optimistic projections about occupancy rates are consistent with recent lockdowns/restrictions on travel and room rental due to the COVID-19 pandemic, and future potential lockdowns/restrictions, (ii) whether there are any other "gating issues" that should be addressed at this time, and (iii) what schedule the parties prefer for proceeding with balloting etc.
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement (dkt. 251, 250)*: 12/8/20 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 1/5/21 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Debtor's Disclosure Statement ("D/S," dkt. 226) and exhibits (dkt.235), Plan of reorganization ("Plan," dkt. 227) and exhibits (dkt.236), and request for judicial notice ("RJN," dkt.239)
Debtor apparently intends to sell some properties, cure arrears on others, and pay tax debts and other claims over 24 months, with a 100% dividend to all creditors. See D/S, Ex.I (dkt.235). But on its face the Plan appears to be infeasible, and its cash flow is unclear.
Cash flow
Exhibit C to the D/S (dkt.235 at PDF p.4) shows $8,000.00 income and
$6,108.98) expenses, for net monthly income of $1,891.02, as against monthly Plan payments of over $31,000 (id.), for a monthly deficit of over
$29,000. Id. This appears to show that the Plan is infeasible on its face. In addition, there are several other problems with this alleged cash flow.
First, although Exhibit C to the D/S references bankruptcy Schedules I and J, the space to provide a docket reference is blank. Presumably Debtor is referring to docket no. 18, at PDF pp.24-28.
Second, contrary to the instructions on Bankruptcy Schedule I, line 8a, Debtor has not attached "a statement for each property and business showing gross receipts, ordinary and necessary business expenses, and the total monthly net income." Dkt.18, at PDF p.25. Nor has Debtor used Exhibits C1 through C3 for that purpose. See dkt.235, at PDF pp.5-7.
Debtor's Plan Exhibit B (dkt.236 at PDF p.9) and his Bankruptcy Schedule G (dkt.18 at PDF p.22) list no renters/leases to be assumed (perhaps because
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all renters are month-to-month, or perhaps because some rental units are unoccupied, but either way there is no information about this alleged source of income). The upshot is that creditors (and this Court) have no information about Debtor's proposed source of funding for the Plan.
Third, despite the instructions to make adjustments to avoid "double- counting" (dkt.235, at PDF p.7, line 3), Debtor has not made any adjustments. It is unclear whether Debtor's payment on the first mortgage on his home residence (listed in Bankruptcy Schedule J at $3,808.98 per month, dkt.18, at PDF p.26, line 4) is or is not duplicative of the dollar amounts proposed to be paid going forward. See Plan Ex.A (dkt.236, at PDF p.4) and RJN, Ex.3 (dkt.239 at PDF pp.40-46). Nor is it clear how Debtor is accounting for any other ongoing monthly payments: Debtor's Plan appears to include only cures of arrears, not any accounting on ongoing monthly payments. See Plan Ex.A (dkt.236 at PDF pp.4-5), D/S Ex.C (dkt.235 at PDF p.4), and Bankruptcy Schedule J (dkt.18 at PDF pp.26-27).
Start again
The tentative ruling is to direct Debtor and his counsel to use the existing forms of Plan and D/S but replace the existing exhibits with new exhibits that, in addition to a liquidation analysis and other necessary components, show clearly and in detail (x) all monthly sources of income, (y) all monthly payments to creditors (whether those payments are ongoing, regular payments or payments on arrears or payments on restructured debts or something else), and (z) all one-time payments and the sources thereof. Those exhibits need not be on Local Forms F 3018-1 but they must be in a spreadsheet that performs the calculations, and they must be accurate and clear. A variation on Debtor's Exhibit "I" (dkt.235, last pages) might be sufficient if it were to show ongoing regular monthly payments, monthly payments of arrears, the interest rate, the term, etc. The tentative ruling is to set a deadline of 11/17/20 for Debtor to file those documents (but NOT serve them, except on the UST and any parties requesting a copy).
Deadlines/dates. This case was filed on 2/6/20.
Bar date: 5/1/20 (dkt. 50; timely served, dkt. 55).
Procedures order: dkt. 7 (timely served, dkt.8)
Plan/Disclosure Statement*: See above.
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
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*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Docket 245
Please see the tentative ruling for the status conference (Calendar No. 18, 12/1/20 at 1:00 p.m.).
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
WILMINGTON SAVINGS FUND SOCIETY, FSB
vs DEBTOR
Docket 225
Appearances required.
There is no tentative ruling, but the parties should be prepared to discuss the status of the pending sale of the subject property at 6520-22 Brynhurst Avenue, Los Angeles, CA 90018 (see the stipulation by the parties, dkt. 241).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Edmund Lincoln Anderson Represented By Stella A Havkin
1:00 PM
Movant(s):
Wilmington Savings Fund Society, Represented By
Lior Katz
1:00 PM
Docket 1
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Missing status report
This Court's tentative ruling for 10/6/20 set a deadline of 11/17/20 for Debtor to file a status report. As of the preparation of this tentative ruling, no status report is on file. Why not?
Debtor should be prepared to provide a brief update on the status of its marketing efforts and whether this Court should vacate and/or reset the 12/11/20 deadline to file a plan and disclosure statement.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: file by 12/11/20 using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/26/21 at 1:00 p.m. Brief status report due 1/12/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
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4/21/20, 6/30/20, 7/28/20, 8/4/20, 9/15/20, 9/29/20,
10/27/20
Docket 42
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Amended disclosure statement (dkt. 209), amended plan of reorganization (dkt. 210), declaration re feasibility (dkt. 208)
Debtors should be prepared to address why this Court should not convert or dismiss this case under 11 U.S.C. 1112(b)(4)(A) for the reasons set forth below and in Mission Hen's status report (dkt.207).
Feasibility
This Court's tentative ruling for 10/27/20 (copied below) directed Debtors to address the nearly $25,000 in delinquent adequate protection payments listed in their September MOR (dkt.206) or file an amended MOR by 11/13/20 to correct this with a notation that it corrects all prior MORs. On 11/16/20 Debtors belatedly filed their October MOR (dkt.211), which still reflects nearly $25,000 in delinquent adequate protection payments (id. at PDF p.8).
On the other hand, this Court takes judicial notice that the COVID-19 pandemic, and moratoria on evictions, have created disruptions in the rental markets that may be unprecedented and that might or might not be subject to further changes in future. In addition, although Mission Hen asserts that, as a partially secured junior lienholder, accruing unpaid debt to the senior lienholder is extremely prejudicial. Although this Court notes that this is not a hearing on any motion for relief from the automatic stay, nevertheless "substantial or continuing loss to or diminution of the [bankruptcy] estate and the absence of a reasonable likelihood of rehabilitation" constitute "cause" for
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which the Court "shall" convert or dismiss a case (or appoint a trustee or examiner). 11 U.S.C. 1112(b)(1) & (4)(A).
All parties in interest are encouraged to address the foregoing issues.
Typos
Debtors' declaration of current/post-petition income and expenses (dkt.
209, at PDF pp.19-23) states that total monthly expenses are $5,207.57, leaving net monthly income of $2,905.43. But by this Court's calculations, Debtors' monthly expenses total $5,137.57, which results in net monthly income of $2,975.43 ($8,133 - $5,137.57 = $2,975.43). That typo also affects the calculations in lines 6, 9, 10, & 15 on Exhibit C.
Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above
Continued status conference: If this Court is persuaded not to convert or dismiss this case at the status conference, set a continued status conference for 1/26/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
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Tentative Ruling for 10/27/20:
Appearances required.
Amended disclosure statement (dkt. 204) and amended plan of reorganization (dkt. 205)
The tentative ruling is to set a deadline of 11/13/20 for Debtors to file a corrected and "blacklined" Disclosure Statement, and a corrected and "blacklined" Plan, addressing the following issues, and lodge a proposed order (substantially in the form posted on Judge Bason's portion of the Court's website) setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan.
The Plan in its current form is infeasible by $1,187.22 Debtors' cash flow statement (dkt. 204, Ex.C) shows a small negative
balance after making all plan payments, adding up to the above figure over the life of the Plan. It gives the impression that the Plan is infeasible because Debtors would not be able to make the payments in the amounts proposed.
Debtors are directed to address how they can adjust their budget or Plan to cure this shortfall.
Feasibility
The latest MOR (dkt.206) appears to reflect almost $25,000 in delinquent adequate protection payments (see dkt. 206, at PDF p.8), which dwarfs the reported $750.55 and $4,441.89 in Debtors' DIP accounts. Is that accurate? If so, how can Debtors confirm a feasible plan of reorganization? If not (as this Court suspects), the tentative ruling is to set a deadline of 11/13/20 to correct this MOR (without requiring Debtor to correct prior MORs, but with a notation on the amended MOR noting that it corrects all prior MORs).
Typos
(x) Dividend. The Plan and Disclosure Statement recite a 2% dividend, but Exhibits A and F recite a 1.4% dividend. (y) Impairment. The Plan (Ex.A) appears to have erroneous listings of which classes are impaired. (z) Blank pages. The exhibits to the Plan and Disclosure Statement include many blank pages (including Ex.H). Exhibit H should be completed, and other blank pages should be omitted.
Expired insurance policies
The MOR also identifies two insurance policies with past-dated expiration dates (dkt. 206, at PDF p.8). Have these policies been renewed?
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Deadlines/dates. This case was filed on 4/10/19 and converted from chapter 13 on 6/18/19.
Bar date: 6/19/19, and supplemental bar date of 8/28/19 after conversion to chapter 11, notice timely served (see dkt. 66, 67)
Procedures order: dkt. 41 (timely served, dkt. 46)
Amended Plan/Amended Disclosure Statement*: see above
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Angel Rodriguez Lara Represented By Joanne P Sanchez
Anthony Obehi Egbase
Joint Debtor(s):
Angelica Soto Calva Represented By Joanne P Sanchez
Anthony Obehi Egbase
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Adv#: 2:18-01158 Duff v. Quinn
fr. 08/07/18, 11/27/18, 2/5/19, 3/28/19, 06/06/19; 08/08/19, 11/19/19, 02/18/20, 5/20/20, 6/2/20, 7/28/20, 9/15/20
Docket 1
Debtor(s):
Kevin James Quinn Represented By John F Wolcott
Defendant(s):
Kevin James Quinn Represented By John F Wolcott
Plaintiff(s):
James T Duff Represented By
James T Duff
Trustee(s):
David M Goodrich (TR) Pro Se
1:00 PM
Docket 22
Debtor(s):
Michael Nadlman Represented By David S Hagen
Trustee(s):
Heide Kurtz (TR) Pro Se
1:00 PM
fr. 9/15/20, 9/29/20, 10/27/20
Docket 280
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 26, 12/1/20 p.m. at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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of bankruptcy procedure as adopted by general order 20-01
fr. 7/28/20, 8/18/20, 9/1/20, 9/15/20, 9/29/20, 10/27/20
Docket 247
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 26, 12/1/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
fr. 10/27/20
Docket 318
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the status conference (Calendar No. 26, 12/1/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 27, 10/27/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
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4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20, 9/1/20, 9/15/20, 9/29/20, 10/27/20
Docket 49
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Debtor's Plan (dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing ("Plan Hearing Request," dkt. 247, 272), Order denying without prejudice (dkt. 304)
Debtor has not resolved the issues set forth in this Court's 9/21/20 order (dkt. 304, p.3:1-12) so the tentative ruling is to take this motion off- calendar.
Subchapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), Michael Tremblay's response (dkt. 291), Interim Turnover Order (dkt. 300)
The parties are directed to update this Court on the status of the eviction and address whether any additional relief is appropriate. In addition, the tentative ruling is to continue this matter to be concurrent with the continued status conference (see below).
Subchapter V Trustee's motion re eviction/contempt (dkt. 318, 319, the "Eviction/OSC Motion"), 319), Debtor & Orantes declarations (dkt. 320, 322), Orantes declaration (dkt. 322), Order shortenting time (dkt. 323) and POS (dkt. 326), Trustee declaration (dkt. 328), Debtor & Orantes declarations & opposition (dkt. 329, 330, 331), Trustee's declaration re compensatory sanctions (dkt. 335), no opposition to calculation of compensatory sanctions is on file
The tentative ruling is to award compensatory sanctions against Debtor
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in the amount of $8,402.33 ($8,240 fees + 162.33 costs), payable to the Subchapter V Trustee to reimburse her for fees and expenses incurred to compel compliance with the Turnover Order. In addition, the tentative ruling is to continue this matter to be concurrent with the continued status conference (see below), to address ongoing compensatory sanctions.
Subchapter V Trustee's motion for relief from automatic stay in Debtor's mother's bankruptcy case (Case No. 2:20-bk-20377)
Grant, as set forth in calendar no. 27 (12/1/20 at 1:00 p.m.).
Proposed orders: Subchapter V Trustee is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: see above (& dkt.270)
Continued status conference: 12/22/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
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rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Debtor's small business chapter 11 plan, as amended ("Plan," dkt. 246, 258, 259, 260, 270, 271); Debtor's requests to set hearing on confirmation etc., as amended ("Plan Hearing Request," dkt. 247, 272), Order denying plan hearing request without prejudice (dkt. 304)
As of the preparation of this tentative ruling, the docket does not appear to reflect that Debtor has resolved the issues set forth in this Court's 9/21/20 order (dkt. 304, p.3:1-12). Accordingly, the tentative ruling is to continue Debtor's Plan Hearing Request to be concurrent with the continued Status Conference set forth below.
SubChapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), Michael Tremblay's response (dkt. 291), Interim Turnover Order (dkt. 300)
There is no tentative ruling. The parties should be prepared to discuss the status of Debtor's turn over and whether any supplemental relief is necessary and appropriate at this time.
SubChapter V Trustee's motion for order (1) directing US Marshal to evict all occupants of Laurel Property and (2) issuing an order to show cause re contempt (dkt. 318, the "Eviction/OSC Motion"), application for hearing on shortened time (dkt. 319), SubChapter Trustee's declaration (dkt. 318), Debtor's declaration (dkt. 320), Orantes declaration (dkt. 322), Order shortenting time (dkt. 323) and POS (dkt. 326), supplemental SubChapter Trustee declaration (dkt. 328), supplemental declarations of Debtor (dkt. 329) and Mr. Orantes (dkt. 330), Debtor's opposition (dkt. 331)
The tentative ruling is to grant the Eviction/OSC Motion as follows:
Order directing U.S. Marshal or other appropriate law enforcement agency to evict Debtor, her parents, and any other occupants of Laurel Property
The tentative ruling is to grant the request and direct the SubChapter V
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Trustee to lodge a proposed order directing the U.S Marshal's office to evict any occupant in possession of the Laurel Property, once that office resumes enforcing orders for eviction.
Issuance of OSC
The tentative ruling is that the SubChapter V Trustee has carried her burden of proof to establish the appropriateness of issuing an order directing Debtor to appear and show cause at the continued status conference (see section (2)(d) below) why this Court should not find her in contempt of this Court's Turnover Order (dkt. 300) and impose sanctions as follows:
Compensatory Sanctions: to reimburse the SubChapter V Trustee for her fees and costs in bringing the Eviction/OSC Motion, responding to Debtor's opposition to the OSC (if any) and appearing at a hearing on the OSC, and
Coercive Sanctions: beginning at $100/day from 10/14/20 (the date Debtor was put on notice of the SubChapter V Trustee's request for sanctions) and in increasing amounts, to be determined at the hearing on the OSC, until Debtor has surrendered full possession of the Laurel Property in "broom clean" condition and in full compliance with the Turnover Order.
The tentative ruling is to set a deadline of 11/3/20 for Trustee to file and serve a declaration setting forth the dollar amounts of compensatory sanctions requested, 11/10/20 for any opposition, and 11/17/20 for any reply.
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, and designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128).
Bar date: 6/29/20, dkt. 179 (timely served, dkt. 184)
Procedures order: dkt. 50 (timely served, dkt. 58)
Plan/Disclosure Statement*: see above (& dkt.270)
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208 (filed 5/19/20) and dkt.303 (filed 9/21/20)]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
CAROLINE R. DJANG (SUBCHAPTER V TRUSTEE IN RE: LIAT TALASAZAN)
vs DEBTOR
Docket 13
Grant as set forth below, subject to any opposition and reply at the hearing. Appearances required.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Analysis
The tentative ruling is to grant the following relief for the reasons stated in the motion papers, including (x) this Court's finding that Debtor Sara Talasazan's bankruptcy petition is part of a scheme to delay, hinder, and defraud creditors, and was otherwise filed in bad faith, and (y) the lack of evidence that Sara Talasazan qualifies for any moratorium on evictions.
Debtor Sara Talasazan's unsigned, generic, vague declaration (dkt.13 at PDF pp.22-23) is not evidence.
The tentative finding of a scheme to delay, hinder, and defraud creditors, and bad faith, is based on the matters set forth in the motion papers as well as (i) the long history of the bankruptcy cases filed by Sara Talasazan's daughter, Liat Talasazan (Case No. 2:19-bk-23664-NB), and (ii) this Court's findings, in connection with Sara Talasazan's motion for reconsideration of this Court's eviction orders, that Sara Talasazan had
notice - in multiple ways - of the deadline that this Court imposed, based on that long history, to vacate the premises.
In the event that Sara Talasazan or other occupants at the subject
1:00 PM
property renew their assertions about being subject to a moratorium on evictions, the parties are directed to address why evidence in support of such assertions has not been provided sooner, and whether this Court should hold an evidentiary hearing on that issue.
Subject to all of the foregoing, the tentative ruling is to grant the following relief.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Relief notwithstanding future bankruptcy cases
Grant the following relief pursuant to the legal analysis in In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017):
If this order is duly recorded in compliance with applicable State laws governing notices of interests or liens in the property at issue, then no automatic stay shall apply to such property in any bankruptcy case purporting to affect such property and filed within two years after the date of entry of this order, unless otherwise ordered by the court presiding over that bankruptcy case.
For the avoidance of doubt, any acts by the movant to obtain exclusive possession of such property shall not be stayed, including any eviction actions, through and including any lockout or other enforcement by the Sheriff or other authorized legal authority.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you
1:00 PM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Sara Talasazan Pro Se
Trustee(s):
Kathy A Dockery (TR) Pro Se
2:00 PM
Thomas Polis, (iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions fr. 8/19/20, 9/17/20, 11/3/20
Docket 173
Tentative Ruling for 12/1/20:
Continue to 12/22/20 at 2:00 p.m. for issuance of a Memorandum Decision on the matters taken under submission. Appearances are not required on 12/1/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
2:00 PM
fr. 10/27/20
Docket 213
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Contempt order (dkt. 237)
Compensatory sanctions
This Court has reviewed the Alleged Employees' time records (dkt.
241). As of the preparation of this tentative ruling, YYF has not filed an opposition.
The tentative ruling is to award fees in the amount of $12,100 and costs in the amount of $59.85, for a total compensatory sanction against YYF in the amount of $12,159.58, payable to the Alleged Employees as compensation for the fees and costs they were forced to incur to compel compliance.
Status of compliance
The parties should be prepared to advise this Court on whether (x) coercive sanctions are appropriate (i.e., whether Young failed to produce all responsive documents by 11/20/20 at 5:00 p.m.); and (y) Young responded to the Alleged Employees' written interrogatories by the 11/25/20 at noon deadline.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
2:00 PM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Alleged employees’ motion for issuance of order directing Young Young Food LLC ("YYF") to appear for 2004 examination and production of documents (dkt. 146, "2004 Motion"); Order granting 2004 Motion (dkt. 160, "2004 Order"); Alleged employees’ motion for issuance of OSC re contempt (dkt. 202, "Motion for OSC"), Order setting hearing on Motion for OSC (dkt. 215, the "OSC"), YYF’s opposition papers (dkt. 225, 226, 227), Alleged employees’ reply papers (dkt. 228, 230)
The tentative ruling is to find YYF in contempt of court and impose sanctions in an amount to be determined at the hearing and subsequent proceedings, as set forth below.
The alleged employees have made a sufficient showing that YYF violated this Court’s 2004 Order and YYF has not responded with argument or evidence establishing that it was impossible to comply
The tentative ruling is to overrule YYF’s opposition, grant the Sanctions Motion for the reasons stated in the Alleged Employees’ reply papers (dkt.
228, 230), and find that YYF is in contempt of the 2004 Order.
In addition and alternatively, the tentative ruling is that on the merits this Court is not persuaded by YYF’s arguments that the (i) 2004 Order is overbroad and (ii) seeks discovery that could and should have been sought in a pending nonbankruptcy proceeding for the same reasons stated in this Court’s prior rulings and orders addressing those arguments. See Order (dkt. 173) at PDF p.12, para. "(b)"; Order (dkt. 117) at PDF p.5, para. "(c)"; and Order (dkt. 101) at PDF pp.6-7, para. "(3)."
Sanctions
Compensatory
The tentative ruling is to grant the Alleged Employees’ request for
2:00 PM
compensatory sanctions to reimburse them for their costs incurred preparing and filing the Sanctions Motion, responding to the OSC, and appearing at this hearing. The tentative ruling is to set a deadline of 11/5/20 for the Alleged Employees to file and serve a declaration setting forth their time records and expenses, 11/13/20 for any opposition, 11/19/20 for any reply, and a hearing on 12/1/20 at 2:00 p.m.
Coercive
The tentative ruling is to award coercive sanctions, in an escalating dollar amount to be addressed at the hearing.
Examination by written discovery
The tentative ruling is to grant the Alleged Employees’ request to obtain written discovery of YYF, in lieu of any in person examination out of concerns presented by the risks of COVID-19, by propounding 20 interrogatories on YYF, without prejudice to any follow-up discovery. The parties should be prepared to address what deadlines, if any, this Court should set for serving and responding to the Alleged Employees’ interrogatories (or if this Court should defer to the parties to act within the usual procedures).
Proposed order: Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
2:00 PM
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20, 5/19/20
7/14/20, 7/28/20, 8/18/20, 9/1/20,11/10/20
Docket 43
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 11/10/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Adv#: 2:20-01147 Gonzalez v. MacMillan et al
2. Constructive Fraudulent Transfer [Bankruptcy Code Section 548(1)(b); Cal. Civ. Code Sections 3439.04(B)(2) and 3439.05] 3. To Recover Shareholder Loans 4. For Money Had and Received 5. To Avoid Preferential Payments (11 U.S.C. Section 547)
fr. 9/1/20
Docket 1
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 11/10/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Attitude Marketing, Inc. Represented By James A Dumas Jr Christian T Kim
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
2:00 PM
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By Christian T Kim James A Dumas Jr
2:00 PM
Docket 512
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 8/18/20, 9/1/20, 11/10/20
Docket 1
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (calendar No. 7, 9/1/20 at 2:00 p.m.)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
2:00 PM
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
Docket 201
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades Geoffrey M Davis
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
2:00 PM
Peter J Mastan (TR) Pro Se
2:00 PM
Adv#: 2:17-01229 Wyndham Vacation Resorts, Inc. v. MacMillan et al
fr. 06/13/17, 12/19/17, 1/30/18, 02/27/18, 5/8/18, 07/17/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
4/9/19, 04/30/19, 05/21/19, 06/04/19, 7/2/19; 08/06/19, 8/20/19,
9/24/19, 11/12/19, 12/17/19, 1/14/20, 01/28/20, 2/4/20, 2/18/20,
8/18/20, 9/1/20, 11/10/20
Docket 1
Tentative Ruling for 12/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 9, 12/1/20 at 2:00 p.m.).
Tentative Ruling for 9/1/20:
Please see the tentative ruling for the case status conference for the MacMillan/Martin bankruptcy case (Calendar No. 7, 9/1/20 at 2:00 p.m.)
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David MacMillan Represented By Robert S Altagen
Cynthia Barrett Martin Represented By Robert S Altagen
2:00 PM
Plaintiff(s):
Wyndham Vacation Resorts, Inc. Represented By
Michael B Lubic Daniel M Eliades Geoffrey M Davis
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
2:00 PM
1/14/20, 01/28/20, 2/4/20, 02/18/20, 4/7/20,
5/19/20, 7/14/20, 7/28/20, 8/18/20, 9/1/20, 11/10/20
Docket 332
Tentative Ruling for 12/1/20:
Appearances required.
Terminology
This Court's terminology has been memorialized (MacCase, dkt.485).
Current issues
Wynd-Mac-Adv Motion to approve compromise (adv. dkt. 201), order directing service on creditor matrix (adv. dkt. 204), Proof of service (MacCase, dkt. 512), Trustee's opposition (MacCase, dkt. 515), reply (MacCase, dkt. 516)
There is no tentative ruling. The parties are directed to address the issues raised in the Trustee's opposition.
Trustee-Adv & Wynd-Mac-Adv Pretrial Conference
There is no tentative ruling. The parties should be prepared to update this Court on the status of their evidentiary disputes, any other pending issues, and any settlement discussions.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
2:00 PM
COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
9:00 AM
Adv#: 2:17-01545 Gonzalez v. Macmillan et al
Debtor's Discharge and for Fraudulent Transfer
fr. 1/23/18, 2/27/18, 03/06/18, 4/17/18, 6/12/18, 08/14/18, 10/9/18, 11/6/18, 12/11/18, 1/29/19, 2/26/19, 3/26/19,
04/09/19, 04/30/19, 5/7/19, 06/04/19, 7/2/19; 08/06/19,
8/20/19, 9/24/19, 11/12/19, 12/4/19, 12/17/19, 1/14/20,
01/28/20, 2/4/20, 2/18/20, 8/18/20, 9/1/20
Docket 1
Debtor(s):
David MacMillan Represented By Robert S Altagen
Lamont R Richardson
Defendant(s):
David W. Macmillan Represented By Robert S Altagen
Cynthia B. Martin Represented By Robert S Altagen
Aston Business Solutions, Inc. Represented By
William H Brownstein
Eric A. Martin Represented By
William H Brownstein
Glenn J. Chaffin Represented By
William H Brownstein
Andrae Perez Pro Se
Accelerated Capital Group, Inc. Pro Se
9:00 AM
Does I through XX Pro Se
Plaintiff(s):
Rosendo Gonzalez Represented By James A Dumas Jr Christian T Kim
Trustee(s):
Rosendo Gonzalez (TR) Represented By James A Dumas Jr Christian T Kim
Peter J Mastan (TR) Pro Se
10:00 AM
U.S. BANK TRUST NATIONAL ASSOC vs
DEBTOR
Docket 38
ZoomGov Instructions for all matters on today’s calendar: Meeting ID: 160 970 8030
Password: 922178
Meeting URL: https://cacb.zoomgov.com/j/1609708030
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Please connect at least 5 minutes before the start of your hearing, and wait with your microphone muted until your matter is called. You do not need to call Chambers for advance approval. ZoomGov appearances are free.
Time when these tentative rulings were first posted (for purposes of determining when anyone contesting the tentative ruling must notify other parties of intent to do so): 12:52 p.m. on 12/7/20.
Tentative Ruling for In re Roane [2:17-bk-23156-NB]
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Robin Kashmire Roane Represented By Barry E Borowitz
Movant(s):
U.S. Bank Trust National Represented By Merdaud Jafarnia Jennifer C Wong JaVonne M Phillips
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
KESWICK FINANCIAL GROUP, INC.
vs DEBTOR
Docket 22
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 29).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Ana Maria Ahmad Represented By
Rabin J Pournazarian
10:00 AM
Movant(s):
Keswick Financial Group, Inc. Represented By Arnold L Graff
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
AARON M. MINC
vs DEBTOR
Docket 20
Order mandatory mediation. Appearances required by Movant and (subject to any reservation of rights regarding service) by Debtor.
The tentative ruling is to order mandatory mediation for the reasons stated in calendar no. 4 (12/8/20 at 10:00 a.m.). Meanwhile, the tentative ruling is to order a continuance to 2/9/21 at 10:00 a.m., with a deadline of 12/22/20 to lodge a proposed order appointing a mediator and directing the parties to mediation, and a deadline of 12/15/20 to correct the following issue regarding service.
Service
The proof of service does not show service on both (i) Debtor's counsel and (ii) Debtor individually ("double service"), as required by Rules 7004(b) (9)&(g) and 9014(a), Fed. R. Bankr. P.). Although the proof of service (dkt.
25) lists Debtor's name, the corresponding address does not match the Debtor's mailing adress. The tentative ruling is that this Court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non- bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
If appearances are not required at the start of this tentative ruling but you
10:00 AM
wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Nicole R. Prause Represented By Michael Jay Berger
Movant(s):
Aaron M Minc Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
ALEXANDER RHODES
vs DEBTOR
Docket 26
Order mandatory mediation including all parties seeking nonbankruptcy/nondischargeable judgments against Debtor. Appearances required.
Analysis:
This Court has reviewed the Motion for Relief from Stay (dkt. 26, 28), Debtor's Opposition (dkt. 30), Movant's reply (dkt. 35), and the other filed documents and records in this case, including Debtor's Bankruptcy Schedules (dkt. 10). It appears that the Movant (Alexander Rhodes) and similarly situated persons Aaron M. Minc and Donald L. Hilton, Jr. (collectively, "Plaintiffs") (see, e.g., dkt. 20-28) have long-running disputes including nonbankruptcy litigation with Debtor involving mutual accusations of false and harmful statements posted in various internet fora. See, e.g., dkt. 26, Ex. 1, pp. 6:15–28, 7:1–10.
It appears that Plaintiffs seek (1) nondischargeable monetary judgments under 11 U.S.C. 523 and/or (2) injunctive relief, including for alleged postpetition statements. See, e.g., Reply (dkt. 35), p.4:9-18 (alleged postpetition statements). Meanwhile, Debtor appears to allege that Plaintiffs have engaged in an ongoing scheme to defame and harass her, including alleged threats or encouragement of threats of violence against her.
Based on the foregoing summary, and the following additional analysis, this matter appears to be crying out for mediation.
Cost/benefit for Plaintiffs
Costs
Litigation is expensive. For Paintiffs that expense now includes two
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motions for relief from the automatic stay that are each over 1,000 pages in length - which is extraordinary (and, as an aside, not very effective). Although those 1,000 pages might not have involved a lot of care and attention - they include a large volume of hearsay and repetition - nevertheless it must have taken more than a minimal amount of time for attorneys to assemble those 1,000 pages, and that is just one tiny aspect of the parties' litigation.
The parties have also engaged in discovery disputes and motion practice about jurisdiction and venue in nonbankruptcy courts. That is only the beginning. In other words, the costs of litigation are likely to be very substantial.
Benefits
As for any monetary benefit, even if Plaintiffs were to prevail in their nondischargeability litigation, their judgments probably would be uncollectible. Debtor alleges that she has $-0- of current income, not much future earning capacity (based on her reported past income), and no assets that can be seized (nothing other than exempt retirement funds etc.). Dkt. 10, passim.
Of course, this Court recognizes that Plaintiffs believe Debtor has failed to report assets and earning capacity. But even if, for example, Debtor has omitted one or more grants to engage in research, that does not mean that Debtor ultimately could pay any nondischargeable judgment. This Court takes judicial notice that most such grants do not result in any great income - most of the grant tends to be spent on employees and other expenses, leaving only a modest income for the principal researcher(s).
In addition, even if (a) Plaintiffs were to obtain nondischargeable judgments and (b) Debtor's income were greater than it appears, either now or in future, that might not make the judgments any more collectible. Debtor might well be able to evade collection for a few years and then file a chapter 13 bankruptcy case and obtain the "superdischarge." That might well eliminate any nondischargeable debts of the type that Plaintiffs seek. See, e.g., 11 U.S.C. 523(a)(6) and 1328(a)(2)&(4) (superdischarge of debts even if they involved willful or malicious behavior).
As for any injunctive relief, Plaintiffs may face an uphill battle in any attempt to obtain a prior restraint on Debtor's rights of free speech. In addition, unless a court is willing to grant a sweeping restraint, there may be more litigation every time the parties post their views and one of them alleges defamation or similar claims.
In sum, if Plaintiffs pursue litigation they might well spend a lot, and get
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little or no effective monetary or injunctive relief.
Cost/benefit for Debtor
Costs
On the one hand, at least some of Debtor's litigation expenses appear to be covered under an insurance policy. But as Debtor has noted, the provider has cautioned that coverage might not extend to future litigation expenses and/or judgments. See dkt. 30, p.6:8-25 & Ex. B at PDF pp.68–70. In addition, some litigation expenses apparently are not covered even now, because Debtor alleges that defending against these actions pushed her into bankruptcy. Dkt. 30, p.5:14-17.
Moreover, costs are not measured in dollars and cents alone. Debtor's time is valuable, and it could be eaten up by Plaintiffs' multiple lawsuits, against which she will have to defend herself on multiple fronts, That will take away from her ability to gain a fresh start and move on with her life.
Benefits
As for any counterclaims by Debtor against Plaintiffs, they would be expensive to litigate. In addition, on the (admittedly very limited) record presented to this Court, any such counterclaims appear to be unlikely to result in any financial recoveries or injunctive relief, for the reasons discussed below.
Obstacles to either Debtor or Plaintiffs achieving "vindication"
No doubt both Debtor and the Plaintiffs hope to achieve vindication of their positions through litigation. That seems unlikely.
This Court has reviewed the more-than 1,000 pages filed by Movant, as well as Debtor's opposition, the complaints in the adversary proceedings, and the other filed documents in this case. Although this Court is not at this time reviewing the elements of any claims or defenses for defamation or other alleged acts or omissions - and although this Court does not in any way wish to pre-judge any issues - it seems likely that any judge or jury would have a great many ways in which to find a lack of intent, a lack of cognizable damage, or other missing elements or successful defenses to both sides' claims. The path to any truly satisfactory vindication seems very narrow and difficult.
To be clear, the parties' competing tweets and other communications might well include untrue accusations and very offensive statements. But
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some of those things might well be understandable in context, and others are ambiguous or might be based on justifiable misunderstandings or reactions in the heat of the moment. A clear vindication seems unlikely.
Mediation is flexible and powerful
In this Court's experience, mediation can result in much more effective and useful resolution than litigation. That does not mean either side is happy. But often it is still the best result.
For example, perhaps Debtor could agree that, instead of posting her own comments regarding Movant or NoFap, she could instead notify Movant of whatever content she finds offensive or threatening and believes might be attributable to Movant or his affiliates, and then Movant would be obligated to post a comment reiterating the NoFap terms of use and stating that NoFap does not condone certain posts. Or perhaps the parties could agree that Tweets would be reported to Twitter, using agreed language of some sort.
These are only hypothetical examples, and perhaps they completely miss the mark. But that is actually the point. This Court, or any judge or jury, might well miss the mark in any litigation. In contrast, the parties themselves know best what they want, and mediation might help them achieve more of that than any judge or jury could award.
Conclusion
The tentative ruling is to continue this hearing on the motion for relief from stay to 2/9/21 at 10:00 a.m., with a deadline of 12/22/20 to lodge a proposed order appointing a mediator and directing the parties to mediation.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
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Debtor(s):
Nicole R. Prause Represented By Michael Jay Berger
Movant(s):
Alexander Rhodes Represented By Carl Mueller
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
ALEXANDER RHODES
vs DEBTOR
Docket 16
Order mandatory mediation. Appearances required by Movant and (subject to any reservation of rights regarding service) by Debtor.
The tentative ruling is to order mandatory mediation for the reasons stated in calendar no. 4 (12/8/20 at 10:00 a.m.). Meanwhile, the tentative ruling is to order a continuance to 2/9/21 at 10:00 a.m., with a deadline of 12/22/20 to lodge a proposed order appointing a mediator and directing the parties to mediation, and a deadline of 12/15/20 to correct the following issue regarding service.
Service
The proof of service does not show service on both (i) Debtor's counsel and (ii) Debtor itself ("double service"), as required by Rules 7004(b)(9)&(g) and 9014(a), Fed. R. Bankr. P.). The tentative ruling is that this Court has neither the authority nor the inclination to excuse non-compliance with these rules. It is true that this double service requirement is the exact opposite of typical non-bankruptcy practice, in which it is generally impermissible to serve a represented party personally; but there are good reasons for the double service rule in bankruptcy. It helps protect Debtor and the bankruptcy estate (i.e., all parties in interest) from matters "falling through the cracks" given the high volume and speed of matters in typical bankruptcy cases, and the frequent use of service via U.S. mail.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
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www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Liberos LLC Represented By
Michael Jay Berger
Movant(s):
Alexander Rhodes Represented By Carl Mueller
Trustee(s):
Elissa Miller (TR) Pro Se
10:00 AM
YOUNG SIN KANG
vs DEBTOR
Docket 13
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now
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(Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
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Debtor(s):
Jong Yeun Won Pro Se
Movant(s):
Young Sin Kang Represented By
Lane M Nussbaum
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
SCOTT L. VAUGHAN
vs DEBTOR
Docket 12
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, the movant obtained a prepetition unlawful detainer judgment, and Debtor has not satisfied the statutory requirements to remain in possession. See 11 U.S.C. 362(b)(22) and (l)) and (b).
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second,
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even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now (Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Retroactive relief
Deny the request for retroactive annulment of the stay because Judge Bason is not prepared to issue a blanket annulment with respect to whatever unspecified things might have occurred postpetition.
Relief notwithstanding future bankruptcy cases.
Deny, without prejudice to any other types of relief granted herein (or previously granted), for the following reasons.
The motion requests requests "in rem" relief (i.e., relief applicable notwithstanding future bankruptcy cases (under 11 U.S.C. 362(d)(4) and/or In re Vazquez, 580 B.R. 526 (Bankr. C.D. Cal. 2017), and/or In re Choong (case no. 2:14-bk-28378-NB, docket no. 31)). The tentative ruling is to deny that request for lack of sufficient cause shown.
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
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Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have
any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay. If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Donald Gregory Levenson Represented By Eugene S Fu
Movant(s):
Scott L. Vaughan Represented By Gary D Fidler
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 78
Tentative Ruling for 12/8/20:
Appearances required.
At the 10/27/20 hearing, this Court was persuaded to continue this matter based on the debtor's participation in the Loan Modification Management Pilot Program and completion of the three-month trial payments and to allow the parties an opportunity to complete the final paperwork. There is no tentative ruling, but the parties should be prepared to address whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
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Appearances required.
At the 8/18/20 hearing, this Court was persuaded to continue this matter based on the debtor's participation in the Loan Modification Management Pilot Program. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20 (same as for 7/14/20 and 5/19/20 except for CourtCall deadline in brackets):
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [9/30/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 82).
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Karen Deshawn Taylor Represented By Lionel E Giron
Movant(s):
U.S. Bank National Association Represented By Matthew R. Clark III Sean C Ferry
April Harriott Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CARRINGTON MORTGAGE SERVICES, LLC
vs DEBTOR
Docket 37
Tentative Ruling for 12/8/20:
Appearances required.
At the hearing on 10/27/20 this matter was continued for Debtor to close the proposed sale of the subject property. See dkt. 81. Has that sale closed?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
At the 9/15/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have
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been brought current and/or (b) whether they will agree to the terms of an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 7/28/20 hearing, this Court was persuaded to continue this matter for a possible forebearance agreement. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order and/or (c) whether they will agree to the terms of a forebearance agreement (see the debtor's response, dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately
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resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Diana Eugenia Rojas Represented By
Anthony Obehi Egbase
Movant(s):
CARRINGTON MORTGAGE Represented By
Diana Torres-Brito Julian T Cotton
Trustee(s):
Kathy A Dockery (TR) Pro Se
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HSBC BANK USA, NA
vs DEBTOR
Docket 37
Tentative Ruling for 12/8/20:
Appearances required.
At the hearing on 11/10/20 this matter was continued for Debtor to close the proposed sale of the subject property. See dkt.47. Has that sale closed?
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Appearances required. At the hearing on 9/1/20 this matter was continued for Debtor to close the proposed sale of the subject property. See dkt.47. Has that sale closed?
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/1/20:
Grant as set forth below because as of the drafting of this tentative ruling, Debtor has not filed a motion to sell the property as proposed in her opposition (dkt. 40) and at the 8/4/20 hearing. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
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Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 8/4/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
There is no tentative ruling, but the parties should be prepared to address the issues raised in Debtor's response (dkt. 40).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
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Debtor(s):
Aquita Winslow Represented By Elena Steers
Movant(s):
HSBC BANK USA, N.A Represented By Sean C Ferry Eric P Enciso
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
COMMUNITY LOAN SERVICING, LLC
vs DEBTOR
Docket 30
Debtor(s):
Thomas Lewis Calvet Represented By Julie J Villalobos
Movant(s):
Community Loan Servicing, LLC Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
U.S. BANK NATIONAL ASSOC vs
DEBTOR
Docket 30
Tentative Ruling for 12/8/20:
Appearances required.
At the 10/28/20 hearing, this Court was persuaded to continue this matter to allow the parties an opportunity to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to discuss the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/28/20:
Grant as set forth below. Appearances are not required.
10:00 AM
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Jeanette Jefferson Represented By Matthew D. Resnik
Movant(s):
U.S. Bank National Association, not Represented By
Sean C Ferry
10:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01662 Minc v. Prause
Docket 3
Grant in part and continue in part, as provided below. Appearances are not required on 12/8/20.
The tentative ruling is to stay this adversary proceeding until further order of this Court, and hold a continued status conference concurrent with whatever date is selected for the related motions for relief from the automatic stay (see calendar nos. 3-5, 12/8/20 at 10:00 a.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Nicole R. Prause Represented By Michael Jay Berger
Defendant(s):
Nicole R. Prause Represented By Michael Jay Berger
11:00 AM
Plaintiff(s):
Aaron M Minc Pro Se
Trustee(s):
Elissa Miller (TR) Pro Se
11:00 AM
Adv#: 2:20-01642 Roughan & Associates at Linc, Inc. v. Perlman
Docket 5
Please see the tentative ruling for the adversary status conference (Calendar No. 3, 12/8/20 at 11:00 a.m.).
Debtor(s):
Deborah J. Perlman Represented By Michael Jay Berger
Defendant(s):
Deborah J. Perlman Represented By Michael Jay Berger
Plaintiff(s):
Roughan & Associates at Linc, Inc. Represented By
David M Almaraz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01642 Roughan & Associates at Linc, Inc. v. Perlman
Docket 1
Appearances required.
Mediation
Both parties have requested mediation. See Adv.Stat.Rpt. (adv.dkt.9),
p.3. The tentative ruling is that mediation appears to be very appropriate but, before any mediation order can be issued, the parties should address whether this bankruptcy case and adversary proceeding should be transferred to Bankruptcy Judge Zurzolo, who is presiding over a related adversary proceeding in the lower-numbered bankruptcy case of an affiliated debtor. See Roughan & Assoc's at Linc, Inc. v. Richardson (In re Richardson) (Case No. 2:20-bk-16027-VZ, Adv. No. 2:20-ap-01640-VZ, the "Related Bankruptcy Action"). (Caveat: If Judge Zurzolo were to prefer that the case before him be transferred to Judge Bason, that is also possible.)
The tentative ruling is to continue this matter to 12/22/20 at 11:00
a.m. Meanwhile, after hearing from the parties at this hearing, Judge Bason can confer with Judge Zurzolo about which of them should preside over these related proceedings. If this adversary proceeding is transferred to Judge Zurzolo, then the continued hearing before Judge Bason will go off calendar.
Defendant/Debtor's motion to dismiss ("MTD," adv. dkt. 5, 6), Plaintiff's opposition (adv. dkt. 8), Defendant/Debtor's reply (adv. dkt. 10)
The tentative ruling is not to express any views with respect to the motion to dismiss at this time, because this adversary proceeding might be transferred to Judge Zurzolo (see above).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
11:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Deborah J. Perlman Represented By Michael Jay Berger
Defendant(s):
Deborah J. Perlman Pro Se
Plaintiff(s):
Roughan & Associates at Linc, Inc. Represented By
David M Almaraz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 567
Appearances are not required.
Approve the Movant's application and allow the Movant $11,549.50 in fees and $328.30 in expenses, for a total award of $11,877.80.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
QTS, INC. Represented By
James R Selth Elaine Nguyen Daniel J Weintraub
Trustee(s):
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
11:00 AM
11:00 AM
Docket 569
Appearances are not required.
Approve the Movant's application and allow the Movant $16,722.49 in fees and $228.30 in expenses, for a total award of $16,950.79.
Caveat: In future, Movant should disclose how the calculation under 11
U.S.C. 326(a) is calculated (i.e., 25% x $5,000.00 = $1,250.00, plus 10% x
$45,000.00 = ....).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
QTS, INC. Represented By
James R Selth Elaine Nguyen Daniel J Weintraub
11:00 AM
Trustee(s):
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
11:00 AM
fr. 9/16/14, 10/21/14, 11/18/14, 11/25/14, 12/16/14, 01/27/15, 2/3/15, 3/10/15, 5/12/15, 07/21/15, 9/8/15,
10/27/15, 11/17/15, 1/19/16, 2/23/16, 3/8/16, 04/26/16,
5/31/16, 7/5/16, 9/13/16, 11/8/16, 11/29/16, 2/7/17,
5/23/17, 9/12/17, 03/06/18, 9/18/18, 12/18/18, 12/10/19
Docket 1
Tentative Ruling for 12/8/20:
Appearances are not required on 12/8/20.
Continue to 12/14/21 at 11:00 a.m. for the reasons set forth in the Trustee's status report (dkt. 572).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
QTS, INC. Represented By
James R Selth
11:00 AM
Trustee(s):
Elaine Nguyen Daniel J Weintraub
Timothy Yoo (TR) Represented By Monica Y Kim Jeffrey S Kwong
11:00 AM
fr. 10/7/20
Docket 9
Appearances required.
There is no tentative ruling, except that this matter will be heard at the end of the 11:00 a.m. calendar so that this Court can give the instructions required by 11 U.S.C. 524, and then the parties can address whether this Court should or should not approve the proposed reaffirmation agreement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Pier St. Cyr Pro Se
Trustee(s):
Heide Kurtz (TR) Pro Se
11:00 AM
fr. 10/7/20
Docket 8
Appearances required.
There is no tentative ruling, except that this matter will be heard at the end of the 11:00 a.m. calendar so that this Court can give the instructions required by 11 U.S.C. 524, and then the parties can address whether this Court should or should not approve the proposed reaffirmation agreement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Lydia Ariadna Avila Vargas Represented By Tamar Terzian
Trustee(s):
John P Pringle (TR) Pro Se
11:00 AM
Adv#: 2:19-01181 Elissa D. Miller, Chapter 7 Trustee v. NANO
Recovery of Avoided Transfer [11 U.S.C. section 550]; (4) Declaratory Relief; and (5) Turnover [11 U.S.C. section 542] fr. 8/20/19, 10/29/19, 1/28/20, 03/31/20, 6/2/20, 8/4/20
Docket 1
Debtor(s):
Rima Adam Nano Represented By
G Marshall Hann
Defendant(s):
ADMON NANO Represented By Gary A Starre
Plaintiff(s):
Elissa D. Miller, Chapter 7 Trustee Represented By
Jeremy Faith Noreen A Madoyan Anna Landa
Trustee(s):
Elissa Miller (TR) Represented By Noreen A Madoyan Anna Landa
11:00 AM
fr. 6/12/18, 07/17/18, 10/16/18, 03/12/19, 4/9/19, 05/21/19, 7/9/19, 10/1/19, 2/4/20, 4/7/20, 7/14/20, 09/01/20
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
11:00 AM
fr. 10/6/20
Docket 43
Debtor(s):
Letitia Louise Wellington Pro Se
Movant(s):
Michael D. Madison Sr. Represented By Stella A Havkin
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
Adv#: 2:19-01211 Avery v. Wellington et al
2. Turnover of Bankruptcy Estate Property Under 11 U.S.C. Section 542(a); and 3. Authorization to Sell Estate Property Under 11 U.S.C. Section 363(h) and FRBP 7001(3) Free of Co-Owner Interest; 4. Bar Debtor and Amos Q. Wellington from Recovering Avoided Transfer Under Bankruptcy Code, Under 11 U.S.C. Section 522(g)(1)(A) and (B)
fr. 9/24/19, 11/12/19, 3/10/20, 7/14/20, 09/01/20, 10/6/20
Docket 1
Debtor(s):
Letitia Louise Wellington Pro Se
Defendant(s):
Letitia Louise Wellington Pro Se
Amos Q. Wellington Pro Se
Jonathan Wellington Pro Se
Michael Wellington Pro Se
Plaintiff(s):
Wesley H Avery Represented By Brett B Curlee
Trustee(s):
Wesley H Avery (TR) Represented By Brett B Curlee
11:00 AM
04/30/19, 06/04/19, 7/30/19, 10/1/19, 10/15/19, 11/12/19,
12/10/19, 02/18/20, 3/3/20, 03/31/20, 8/4/20
Docket 1
Tentative Ruling for 12/8/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 15 (12/8/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01069 Pimentel v. Layfield et al
Cont'd Status Conference re: Complaint Against Dischargeability
1) Declaratory Relief and 2) Fraudulent Transfer / Concealment fr. 5/21/19, 06/04/19, 7/30/19, 10/1/19, 03/31/20, 8/4/20
Docket 1
Tentative Ruling for 12/8/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 15 (12/8/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip J Layfield Pro Se
WESLEY Howard AVERY Pro Se
Affeld Grivakes LLP Represented By Damion Robinson
Plaintiff(s):
Rodney A Pimentel Represented By Yana G Henriks
Trustee(s):
Wesley H Avery (TR) Represented By
11:00 AM
Jeffrey I Golden Faye C Rasch Beth Gaschen Ryan W Beall
11:00 AM
Adv#: 2:19-01071 Richard M. Pachulski, Chapter 11 Trustee of the Ba v. Layfield
fr. 05/21/19, 11/5/19, 03/31/20, 8/4/20
Docket 1
Tentative Ruling for 12/8/20:
Please see tentative ruling for status conference in the Layfield & Barrett
case, calendar no. 15 (12/8/20 at 11:00 a.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Philip James Layfield Represented By Anthony M Solis
Defendant(s):
Philip James Layfield Pro Se
Plaintiff(s):
Richard M. Pachulski, Chapter 11 Represented By
James KT Hunter
Trustee(s):
Wesley H Avery (TR) Represented By Jeffrey I Golden Faye C Rasch Beth Gaschen
11:00 AM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20, 9/15/20
Docket 323
Tentative Ruling for 12/8/20:
Continue all matters as set forth below. Appearances are not required on 12/8/20. This Court's tentative ruling for 12/1/20 inadvertently set a continued status conference in the L&B case for 12/8/20 at 1:00 p.m., instead of 11:00 a.m., so a copy of the following rulings are being included in the tentative ruling for the 1:00 p.m. calendar (see Calendar No. 25, 12/8/20 at 1:00 p.m.).
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pimentel v. Layfield et al, Case No. 2:19-ap-01069-NB ("Pimentel Adv."), (d) Pachulski v. Layfield, Case No. 2:19-ap-01071-NB ("Pachulski Adv.").
L&B, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Lay-Invol, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Pimentel Adv., status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
11:00 AM
Pachulski Adv., status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/4/21 at 11:00 a.m. No written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
11:00 AM
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
1:00 PM
Docket 160
Please see the tentative ruling for the status conference (Calendar No. 2, 12/8/20 at 1:00 p.m.).
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
1/28/20, 03/31/20, 5/5/20, 6/16/20, 7/14/20, 9/15/20,
11/10/20, 12/1/20
Docket 1
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Motion of Apex Realty, Inc. & BRG Adams, LLC ("Apex/BRG") to dismiss, convert or appoint chapter 11 trustee (dkt. 160, "MTD") and request for judicial notice (dkt. 161), Debtor's opposition (dkt. 170) and request for judicial notice (dkt. 171), Apex/BRG's reply (dkt. 172), evidentiary objections (dkt. 173), and errata (dkt. 174)
The tentative ruling is to grant relief pursuant to 11 U.S.C. 1112(b)(4)
based on Debtor's monthly financial losses and accumulating administrative expenses - which constitute "substantial" losses to or diminution of the estate and, alternatively, "continuing" losses to or diminution of the estate - and the "absence of a reasonable likelihood of rehabilitation." The parties are directed to address whether appointment of a chapter 11 trustee pursuant to 11 U.S.C. 1112(b)(1) would be in the best interests of creditors and the estate, given:
a trustee's ability to arrange for sales of real estate under 11
U.S.C. 363, including a reserve for disputed claims if necessary, so as to maximize the value of the estate for the benefit of not only Apex/BRG and other creditors but also other constituents of the bankruptcy estate, including employees and the public who benefit from Debtor's charitable functions;
a trustee's ability to assess possible settlement value of litigation with Apex/BRG and achieve finality for the benefit of all parties; and
the possibility of preserving Debtor's charitable functions -
1:00 PM
either by Debtor or by a purchaser or successor entity - as opposed to the harm to such functions that might arise from dismissal or conversion.
Alternative "cause" to grant MTD
The tentative ruling is that Apex/BRG have established alternative "cause," not under any of the other specific statutory examples set forth in 11
U.S.C. 1112(b)(4)(B) through (P), but due the combination of circumstances described in the MTD and supporting papers. Chief among those circumstances is Debtor's use of bankruptcy to avoid having to post a supersedeas bond (which normally would be required in order to stay Apex/BRG's enforcement of its judgment while disputing the arbitration award on appeal).
Note: In addition to the issues noted by Apex/BRG, this Court notes that Debtor has repeatedly filed untimely operating reports without adequate explanation. The tentative ruling is that this Court would not grant relief on that ground alone, but it adds weight to the other grounds. See 11 U.S.C.
1112(b)(4)(F), and see JuneMOR (dkt. 144, filed 7/23/20), JulyMOR (dkt. 146, filed 8/24/20), AugMOR (dkt. 148, filed 9/22/20), SeptMOR (dkt. 159, filed 10/26/20), OctMOR (dkt. 175, filed 12/2/20)).
Evidentiary objections (dkt.173)
In connection with all of the foregoing, the tentative ruling is to sustain the evidentiary objections of Apex/BRG, and treat the portions of Mr.
Silverman's declaration to which Apex/BRG object as argument rather than evidence. Alternatively, the tentative ruling is that considering those portions as evidence would not alter the outcome.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex/BRG has been extended (see dkt. 78, 138, 156)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: If this Court adheres to the tentative ruling not to dismiss this case, set a continued status conference for 1/12/21 at 1:00 p.m. No written status report
1:00 PM
required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Continue as set forth below. Appearances are not required on 12/1/20.
Current issues
This Court has nothing to raise sua sponte at this time.
Deadlines/dates. This case was filed on 7/31/19.
Bar date: 10/25/19 (dkt. 24; timely served, dkt. 26). Exception: the bar date for creditors Apex Realty, Inc. and BRG Adams, LLC is 12/14/20 (dkt. 78, 138, 156)
Procedures order: dkt. 2 (timely served, dkt.23).
Plan/Disclosure Statement*: TBD
Continued status conference: 12/8/21 at 1:00 p.m., to be concurrent with the motion to dismiss or convert (dkt.160). No written status required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
1:00 PM
required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
1:00 PM
Adv#: 2:20-01641 Campos v. Kennedy
Docket 1
Continue to 12/22/20 at 1:00 p.m., concurrent with the hearing on Defendant/Debtor's motion to dismiss (adv. dkt. 9). Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Defendant(s):
John Martin Kennedy Pro Se
Plaintiff(s):
Yunuen Campos Represented By Lauren A Dean
1:00 PM
1:00 PM
Expenses for the Period of July 1, 2020 through October 31, 2020
Docket 203
- NONE LISTED -
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 188
Please see the tentative ruling for the status conference (Calendar No. 6, 12/8/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 12/8/20:
Continue as set forth below. Appearances are not required on 12/8/20.
Current issues
SLBiggs first interim fee application (dkt. 188, 200), no opposition
on file
Grant the application and allow $15,443.50 in fees and $175.26 in
costs for a total interim award of $15,618.76.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 1/19/21 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/22/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
1:00 PM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Campos v. Kennedy (Adv. No. 2:20-ap-01626-NB)
As set forth in the tentative ruling for this matter (calendar no. 12, 12/1/20 at 1:00 p.m.), the parties are directed to address (i) the scope of Ms. Campos' asserted interest in pre- and postpetition accounts receivable and
(ii) whether or not to stay this adversary proceeding until after any litigation on whether to confirm Debtor's forthcoming chapter 11 plan.
Budget motion (dkt. 51), Yunuen Campos' opposition (dkt. 57), Debtor's supplemental declarations (dkt. 71), Campos' response (dkt. 92), interim order (dkt. 101), Debtor's reply (dkt. 103), interim order (dkt.138)
The tentative ruling is to grant the Budget motion on a further interim basis, on the same terms as before, and with a continued hearing on 1/26/21 at 1:00 p.m., but with a caution to Debtor that the promised analysis by his accountant must be completed so that Ms. Campos can file and serve a supplemental response, Debtor can file and serve a supplemental reply, and this Court can make a final ruling on this motion.
Insider compensation, Debtor's supplemental declaration (dkt. 71), Ms. Campos' response (dkt. 92), Debtor's reply (dkt. 103)
The tentative ruling is to authorize Debtor to continue to pay Ms.
Howerton monthly compensation of $6,000, on an interim basis, as previously provided, with the same continued hearing date and the same caution as set forth above regarding the budget motion.
1:00 PM
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 12/18/20 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/8/20 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By
1:00 PM
Sandford L. Frey
1:00 PM
Docket 430
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 431
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 432
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 433
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 439
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 440
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
Docket 406
Please see the tentative ruling for the status conference (Calendar No. 14, 12/8/20 at 1:00 p.m.).
Debtor(s):
Tatung Company of America, Inc. Represented By
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
fr. 10/2/19, 10/15/19, 10/29/19, 11/5/19, 12/10/19, 12/17/19, 01/07/20, 1/14/20, 02/18/20, 4/21/20,
6/2/20, 6/16/20, 7/7/20, 8/18/20, 9/1/20, 9/29/20,
10/6/20, 10/27/20, 12/1/20
Docket 1
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Six Degrees Law Group third interim fee application (dkt. 430 434, "Application"), declaration of Jason Chen (dkt. 441), no opposition is on file
The tentative ruling is to grant the Application approving fees of
$12,695.00 and $0 in expenses for a total award of $12,695.00.
Levene, Neale, Bender, Yoo & Brill L.L.P. third interim fee application (dkt. 431 434, "Application"), declaration of Jason Chen (dkt. 441), supplement (dkt. 446), no opposition is on file
The tentative ruling is to grant the Application approving fees of
$241,172.00 and $11,890.48 in expenses for a total award of $253,062.48.
Law Office of David Agler ("Applicant") first interim fee application (dkt. 432 434, "Application"), declaration of Jason Chen (dkt. 441), no opposition is on file
The tentative ruling is to grant the Application approving fees of
$58,240.00 and $0 in expenses for a total award of $58,240.00.
The tentative ruling is also that Applicant is cautioned that this Court may reduce future requests for fees if Applicant's billing sheets continue to contain substantial lumping (or block billing) of services in violation of the UST's Fee Guidelines (see, e.g., dkt. 432, PDF p.12–18).
1:00 PM
Grobstein Teeple LLP first interim fee application (dkt. 433 434,
"Application"), declaration of Jason Chen (dkt. 441), no opposition is on file The tentative ruling is to grant the Application approving fees of
$6,253.00 and $0 in expenses for a total award of $6,253.00.
Sklar Kirsh, LLP ("Applicant") second interim fee application (dkt. 439, 434, "Application"), no opposition is on file
The tentative ruling is to conditionally grant the Application approving fees of $7,702.50 and $244.45 in expenses for a total award of $7,946.95.
The tentative ruling is also that this order is conditioned on Applicant’s filing of a declaration which complies with the requirements of LBR 2016-1(a) (1)(J) no later than December 15, 2020.
Goldstein & McClintock LLP second interim fee application (dkt. 440, 434, "Application"), no opposition is on file
The tentative ruling is to conditionally grant the Application approving fees of $42,169.00 and $481.75 in expenses for a total award of $42,650.75.
The tentative ruling is also that this order is conditioned on Applicant’s filing of a declaration which complies with the requirements of LBR 2016-1(a) (1)(J) no later than December 15, 2020.
Debtor’s First Amended Disclosure Statement (dkt. 406, 427) and Debtor’s First Amended Chapter 11 Plan (dkt. 405), draft trust agreement (dkt. 447), draft SPE documents (dkt. 448), memorandum of points and authorities in support of confirmation ("MPA," dkt. 449), ballot summary (dkt. 450)
There are no filed objections on the docket and all classes of creditors entitled to vote on confirmation of the plan have voted in favor of approval.
Debtor's MPA persuasively argues that all elements of confirmation have been met, including as to Class 6 (equity interests) that are deemed to reject the Plan but as to which the Plan is "fair and equitable" within the meaning of 11 U.S.C. 1129(b), and therefore "cramdown" is appropriate. In addition, the proposed non-material modification regarding the effective date (dkt.449, pp.9:15-10:6) appears to be appropriate.
The tentative ruling is to approve the disclosure statement on a final basis; to confirm the Plan with the non-material modification of defining the
1:00 PM
Effective Date to be five business days after entry of the confirmation order on the docket (subject to the conditions stated in the MPA); and to set a post- confirmation status conference as set forth below.
Proposed orders: Debtor is directed to lodge proposed orders on each of the foregoing motions via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
Deadlines/dates. This case was filed on 9/30/19.
Bar date: 1/17/20 dkt. 97 (timely served, dkt. 101).
Procedures order: dkt.18 (timely served, dkt.25)
Plan/Disclosure Statement (dkt. 405, 406)*: See above.
Post-Confirmation status conference: 3/9/21 at 1:00 p.m., brief
written status report due 2/23/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tatung Company of America, Inc. Represented By
1:00 PM
Ron Bender Lindsey L Smith Juliet Y Oh
1:00 PM
#15.00 | Cont'd Status Conference re: Chapter 11 Case |
fr. 03/03/15, 03/31/15, 04/28/15, 05/26/15, 06/09/15, | |
07/07/15, 07/28/15, 09/01/15, 09/22/15, 11/17/15, 12/15/15, | |
01/19/16, 02/23/16, 03/22/16, 05/31/16, 07/19/16, 09/27/16, | |
11/29/16, 01/10/17, 04/25/17, 06/20/17, 10/17/17, 01/30/18, | |
04/10/18, 05/08/18, 06/07/18, 07/10/18, 08/07/18, 9/4/18, | |
10/9/18, 11/6/18, 01/08/19, 3/26/19, 05/21/19, 8/20/19, 11/26/19, | |
12/10/19, 4/7/20, 8/4/20 |
Docket 9
Debtor(s):
R&J Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
JRJ Limited Partnership Represented By
Vanessa M Haberbush David R Haberbush
1:00 PM
Docket 6
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
2d Amended Plan (dkt.98) and Disclosure Statement (dkt.97)
The tentative ruling is that with two minor changes these documents are suitable for distribution to creditors with a voting package. The two changes are:
Ex.C (dkt.97 at PDF p.9) can be amended such that line 5a lists Debtor's $16,052.00 historical income (per dkt.75), line 5b lists Debtor's
$13,186.97 historical expenses (id.), and line 5c lists the total adjustments of
$803.97 net expenses such that disposable income is reduced from
$2,865.03 to $2,061.06 (dkt.97 at PDF pp.12-16).
Ex.C1 and C2 can be deleted (because they are superseded by the markups of bankruptcy schedules I and J that are at dkt.97, PDF pp.12-16).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement (dkt. 98, 97)*: 12/15/20 deadline to file (NOT SERVE - except on the U.S. Trustee) any redlined revisions to be discussed at the status conference and lodge Judge Bason's form of order authorizing service of the voting package, setting deadlines, and setting a combined hearing on final approval of the Disclosure Statement and confirmation of the Plan for the same time as the continued status conference.
Continued status conference: 2/9/21 at 1:00 p.m. No written
1:00 PM
status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Appearances required.
Current issues
Amended Disclosure Statement ("D/S," dkt. 89), Plan (dkt. 90), and Bankruptcy Schedules I&J ("I&J," dkt.75)
Debtor's D/S cash flow projectsions (dkt.89, Ex.C, at PDF p.10) incorporate by reference Debtor's I&J, with some adjustments. This Court does not follow Debtor's calculations, and the tentative ruling is that it would be better disclosure for Debtor (i) to attach a version of I&J to the D/S (right behind Ex.C), (ii) to make hand-written amendments to I&J to show whatever modifications Debtor is proposing, and (iii) to circle on the stipulations with lienholders the dollar amounts that match those marked up I&J documents. This Court's confusion is outlined below.
The dollar amounts of the mortgage in Schedule J (dkt.75, at PDF p.6, lines 4 & 5) are $3,439.00 for the 1st deed of trust ("DOT") on debtor's residence, $3,069.42 for the 2d DOT, and (id. at PDF p.4) $4,270.55 on the rental property (plus $778/mo. in taxes). In contrast, the stipulation with the holder of the 1st DOT provides ongoing monthly payments of $2,945.53 (including P&I, taxes, and insurance) (dkt.84, p.3:16) and cure payments of
1:00 PM
$735.89 (dkt.84, p.3:26) for a total of $3,681.42 per month, and the stipulation with the holder of the 2d DOT (dkt.82, p.3:16) provides for payment of
$4,610.10/mo. ($3,800.00 P&I plus $810.10 for property taxes). It appears that Debtor has added back in $570.00/mo. (dkt.89, Ex.C1, at PDF p.10) to account for a modification in an exhibit "J" (dkt.89, Ex.H, n.C1, at PDF p.22), but no such exhibit "J" appears to be included in the documents reviewed by this Court, and this Court's quick calculations cannot get the dollar amounts to match. Likewise, Debtor has added back $435.45 to make a similar adjustment for the DOT on the rental property. See dkt.89, Ex.C1, at PDF p.10, Ex.H, n.C3, at PDF p.22.
This Court's main goals, in requiring use of Local Forms F 3017-1, has been to avoid double-counting debts, and other errors, and avoid "re- inventing the wheel" by using existing forms (I&J) subject to whatever adjustments are needed. The tentative ruling is that hand-written mark-ups of those forms would provide clearer and more accurate calculations; but counsel for all parties in interest are invited to propose whatever methodology will provide clear, accurate, and complete disclosures. The tentative ruling is to set a deadline of 11/20/20 to file those amended documents (but not serve those documents, except on parties who request a copy).
Deadlines/dates. This case was filed on 12/2/19.
Bar date: 2/17/20 (dkt. 22; timely served, dkt. 23)
Procedures order: dkt. 5 (timely served, dkt. 9)
Plan/Disclosure Statement*: file modified versions (with the modifications clearly indicated, by "blacklining" or other method) by 11/17/20 (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 12/1/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
1:00 PM
by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Jeremy Caleb Gardiner Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
Docket 56
Tentative Ruling for 12/8/20:
Continue as set forth below. Appearances are not required on 12/8/20.
Current issues
This Court has reviewed the latest filed documents in this case, including the Status Report (dkt. 119), and is not aware of any issues that would warrant a status conference at this time.
Deadlines/dates. This case was filed on 3/13/20 and converted from chapter 13 on 4/23/20 (dkt. 45).
Bar date: 6/8/20 (dkt. 58; timely served, dkt. 60).
Procedures order: dkt. 56 (timely served, dkt. 61)
Plan/Disclosure Statement*: file by 1/25/21 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 2/9/21 at 1:00 p.m, brief status report due 1/25/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov
1:00 PM
instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Migan Murray Represented By Andrew Moher
1:00 PM
fr. 11/10/20
Docket 0
Please see the tentative ruling for the status conference (Calendar No. 19, 12/8/20 at 1:00 p.m.).
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Debtor's Amended Disclosure Statement (dkt. 77) & Amended Plan (dkt. 76), Order setting hearing on DS/Am Plan (dkt. 78), proof of service (dkt. 81), amended proof of service (dkt. 86), corrected proof of service (dkt. 87) no opposition is on file
At the hearing on 11/10/20 counsel for Debtor represented that, despite the absence of evidence that Debtor had served ballots on creditors, Debtor had in fact done so. The filed proofs of service now reflect that (see dkt. 87).
At that same hearing, counsel for Debtor was not able to address the Plan's apparent lack of provision for compensation for the Subchapter V Trustee. This Court's review of the docket does not reflect any resolution of that issue.
There is no tentative ruling, but the parties should be prepared to address (i) whether the Debtor can point to provisions in the Plan that address payment of the Subchapter V Trustee for both for pre-confirmation services rendered and for post-confirmation services as disbursing agent, and/or (ii) whether the Subchapter V Trustee will sign off on any confirmation order that addresses those issues or if, instead, an amended Plan is required.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
1:00 PM
Plan and Disclosure Statement*: See above.
Continued status conference: 3/2/21 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Continue as set forth below, with contemporaneous hearings on (1) whether to vacate this Court's approval of the employment of Debtor's counsel, reduce counsel's fees, or take other action, on this Court's own motion, for the reasons stated below, and (2) whether, after balloting, to grant final approval to the Disclosure Statement and confirm the proposed Plan, all as further provided below. Appearances are not required on 11/10/20.
Current issues
Debtor's Amended Disclosure Statement (dkt. 77) & Amended Plan (dkt. 76), Order setting hearing on DS/Am Plan (dkt. 78), proof of service (dkt. 81), no opposition is on file
At the hearing on 9/1/20 this Court discussed with Debtor's counsel that Subchapter V does not dispense with the need to solicit votes. In addition, the order setting this hearing (dkt. 78) set 9/29/20 as the deadline for Debtor to serve ballots (along with the rest of the voting package).
Notwithstanding these express directions, counsel for Debtor did not serve ballots (see dkt.81) and, although the caption of Debtor's proof of service
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states that it is a proof of service of this Court's order, the Plan, and the Disclosure Statement, the actual proof of service declares only that the proof of service itself was served. See dkt.81.
The tentative ruling is to direct Debtor's counsel to lodge a proposed order, substantially in the form posted on Judge Bason's portion of the Court's website (at www.cacb.uscourts.gov) setting a continued combined hearing on final approval of the Disclosure Statement and confirmation of the Plan, contemporaneous with the continued status conference (see below). The order must include (i) an appropriate deadline to serve that order and serve ballots, another copy of the Plan and Disclosure Statement, and a declaration stating that the Plan and Disclosure Statement have not been altered from the copies previously sent (and are being provided for convenience only), (ii) an appropriate deadline for parties in interest to return ballots, or file objections, and (iii) other appropriate deadlines as set forth in the form order.
Proposed order: Movant is directed to lodge a proposed order via LOU within two days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The tentative ruling is to set a contemporaneous hearing, on this Court's own motion, on whether to vacate this Court's approval of the employment of Debtor's counsel, or reduce counsel's fees, or take other appropriate action in response to Debtor's counsel's disregard of this Court's express orders regarding balloting. This Court will prepare that order after this hearing date.
Deadlines/dates. This case was filed on 3/6/20.
Bar date: 5/15/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 11, 18).
Procedures order: dkt.12 (timely served, dkt. 15)
Plan and Disclosure Statement*: See above.
Continued status conference: 12/8/20 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Custom Fabrications International, Represented By
Kevin Tang
Trustee(s):
Andrew W. Levin (TR) Pro Se
1:00 PM
Docket 145
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the status conference (Calendar No. 21, 12/8/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
1:00 PM
5/12/20, 6/2/20, 6/30/20, 8/18/20, 9/15/20, 10/27/20
Docket 5
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Motion of Doz Cabezas Properties, LLC ("Dos Cabezas") to dismiss case (dkt. 145, 166), Debtor's opposition (dkt. 168), Dos Cabezas's reply (173), Dos Cabezas's supplemental papers (dkt. 179, 182), Debtor's supplemental papers (dkt. 181, 183)
The tentative ruling is not to strike the latest, unauthorized briefs. In any event, with or without considering them, the tentative ruling is to deny the motion to dismiss this case, without prejudice, for the reasons stated in this Court's tentative ruling for 10/27/20 (copied below), with the following caveats.
First, Debtor is directed to address why the flyer distributed by Collier included the banner "Bankruptcy Court Approved" (dkt.180, Ex.1, and dkt.183, Ex.1). This Court has not approved any sale (although this Court has approved the employment of Colliers to market of the subject property). In fact, there are open questions about whether Debtor even has the ability to sell the subject property without Dos Cabezas' consent.
Second, Debtor is directed to address how it proposes to disclose to prospective purchasers of the properties the fact that Debtor is seeking to sell the subject property before the State Court has determined the underlying disputes with Dos Cabezas. True, as noted in the tentative ruling for 10/27/20, it is possible that Debtor can distinguish In re Popp, 323 B.R. 260, 268 (9th Cir. BAP 2005), and In re Owens-Johnson, 118 B.R. 780 (Bankr.
S.D. Cal. 1990). But the tentative ruling is that Debtor has to disclose to prospective purchasers that (as this Court understands the issues) Dos Cabezas is asserting that (i) Debtor does not own the subject property, and therefore cannot sell it, and alternatively (ii) a sale under 11 U.S.C. 363(b)
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and (f) should not, or cannot, be used to defeat a claim for specific performance.
In other words, Debtor is directed to address (in consultation with Colliers) how it will disclose to prospective purchasers the potential obstacles to selling the property, without either misleading purchasers or unduly chilling any potential bidding. Of course, this Court recognizes that in chapter 11 there is a certain degree of deference to the business judgment of Debtor, in consultation with Colliers, regarding how best to market the subject property and when and how to provide disclosures. This Court also recognizes that Dos Cabezas might decide that it is in its own interest to consent to the sale (while preserving whatever interests or claims it might have regarding the proceeds of sale), so as to (i) maximize the value of the bankruptcy estate's asserts, (ii) stop the running of interest - especially any default interest - owed to the senior lienholder, and thereby (iii) maximize the funds from which its claim and/or equity interests could receive distributions.
But Debtor's flyer ("Bankruptcy Court Approved," dkt.183, Ex.1, at PDF p.9), combined with Debtor's apparently cavalier attitude toward employment and compensation of professionals (see below), raise concerns about whether Debtor and Colliers are not exercising their business judgment appropriately. Debtor is cautioned that failure to exercise proper business judgment, and act as a trustee for the benefit of creditors, might lead to adverse consequences.
Apparently unauthorized retention and payment of professionals Debtor is directed to address the apparently unauthorized employment
and payment of persons who appear to be professionals: Hammonds & Frey (accounting/tax services), Hunter & Co. (management), and BBG, Inc. (appraisal). See dkt.179, p.4:3-23. Debtor alleges (dkt.181, pp.4:23-5:27) that none of these services are "central to the administration of the estate," and instead are "ordinary course" payments that purportedly do not require Court authorization. But, first, there is no evidence to support those allegations and, second, Debtor's explanation raises its own concerns - for example, it is potentially troubling if Debtor is relying on someone to do accounting and tax services who is not addressing the bankruptcy-specific aspects of accounting and tax issues (i.e., if they do not qualify as professionals, that in itself might be problematic).
The tentative ruling is to set a deadline of 1/5/21 for Debtor and/or
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those persons to file and serve on all parties in interest either (i) applications for employment, including any authority for retroactive authorization, or (ii) briefs and evidence as to why such persons are not professionals and/or why the payments to them are "ordinary course" and/or whatever other arguments they assert as to why notice, a hearing, and this Court's prior authorization for employment and payment allegedly were not required. The tentative ruling is to set deadlines of 1/12/21 for any responses, and 1/19/21 for any replies.
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 1/26/21 at 1:00 p.m. Brief status report due 12/29/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Doz Cabezas Properties, LLC's ("Dos Cabezas") motion to dismiss case (dkt. 145, 166), Debtor's opposition (dkt. 168), Dos Cabezas's reply (173)
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The tentative ruling is to deny the motion without prejudice on the
grounds that this Court is not persuaded that, on the present record, sufficient "cause" exists under 11 U.S.C. 1112(b)(4) to convert or dismiss this case.
First, litigation takes time and Dos Cabezas has not presented sufficient evidence to persuaded this Court that Debtor is not diligently prosecuting this bankruptcy case and the State Court action. To the contrary, Debtor's prosecution of this case appears to be reasonable in light of the uncertainty and challeges presented by COVID-19, the resulting backlog in state courts, and the great deal of latitude afforded to debtors exercising their business judgment about matters of case administration.
Second, Dos Cabezas' reliance on In re Popp, 323 B.R. 260, 268 (9th Cir. BAP 2005), and In re Owens-Johnson, 118 B.R. 780 (Bankr. S.D. Cal.
1990), is not dispositive. True, it is likely that Debtor's anticipated motion to sell the subject property will be subject to objections based on arguments that
Debtor cannot sell what it does not own and (ii) a sale under 11 U.S.C. 363(b) and (f) should not, or cannot, be used to defeat a claim for specific performance. But (x) this Court cannot presume, in advance, that those anticipated objections will prevail, (y) even if a sale were blocked, Debtor has other options (e.g., proposing a plan of reorganization, or waiting until a determination in the State Court litigation that Debtor has an ownership interest in the subject property, and therefore can sell it), and (z) even if all of those things were to turn out in future not to be viable options, it is premature to dismiss this case based on that future possibility.
Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, Michael Criscione and Michael Meyer’s ("Movants") omnibus objection to proofs of claim (dkt. 121, "Claim Objections") 4-1/4-2, 6-1, 7-1, 8-1, 9-1, 10-1, 11-1, 12-1, 13-1, 14-1, 15-1, 16-1, 17-1, 18-1, 19-1, 20-1, 22-1, 23-1/23-2, 24-1, 25-1, 26-1, 27-1, 29-1, 31-1, 32-1, 33-1, 34-1, 35-1, 36-1 and 37-1 ("the Claims"), stipulation & order continuing hearing (dkt. 129, 131), Tarzana Crossing, a Merchant Faire, LLC’s ("Tarzana Crossing") opposition (dkt. 137), no reply is on file
Appearances required. At the hearing on 8/18/20 this Court was persuaded to continue this matter, rather than adopt the tentative ruling (reproduced below). The parties should be prepared to address the issues set forth in that tentative ruling and their filed papers.
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Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 12/8/20 at 1:00 p.m. Brief status report due 11/24/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/15/20:
Appearances required.
Current issues
Debtor's application to employ Colliers International Greater Los Angeles, Inc., dba Colliers International ("Colliers") (dkt. 138-140, 142, the "Employment Application"), Criscione-Meyer Parties' opposition (dkt. 144), Tarzana Crossing's opposition (dkt. 146, 149), Debtor's replies (dkt. 150, 151, 152, 157)
The tentative ruling is (i) to overrule the objections for the reasons stated in Debtor's reply papers (except to the extent of Debtor's and Colliers' accession to the 6-month term in Debtor's reply papers) but (ii) to prohibit dual agency as set forth below. The "Posted Procedures of Judge Bason" (available at www.cacb.uscourts.gov) provide notice that Judge Bason's standard employment order prohibits dual agency, and refer to an explanation of the problems with dual agency as set forth in another case. See In re Ebuehi, Case No. 2:18-bk-20704-NB, dkt. 281, at PDF pp.9-10). Nothing in the Employment Application provides any reason to depart from that policy.
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Notwithstanding the foregoing, the tentative ruling is that the dangers
inherent in dual agency are substantially ameliorated if (i) the individual(s) who represent the bankruptcy estate as seller operate out of a different branch office from the office of any individual(s) who represent prospective buyers and (ii) the compensation structure is structured in a way that does not implicate the concerns raised in Ebuehi. The tentative ruling is that, if Debtor and Colliers with to attempt to meet these conditions, then this Court will set a deadline of 9/22/20 to file declaration(s) addressing these conditions (including a detailed disclosure of the compensation structure), and serve such declarations on the United States Trustee and all parties in interest who attend this hearing. Alternatively, if they do not wish to pursue that alternative, the tentative ruling is to condition any approval of the Employment Application on an absolute bar on any dual agency - i.e., no person at Colliers may represent any prospective buyer.
Proposed order: If this matter is not continued, and this Court is
persauded to grant the Employment Application immediately, Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m., concurrent with other matters. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888)
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882-6878.
Tentative Ruling for 8/18/20:
Sustain the claim objections and continue the Status Conference as set forth below. Appearances required as to the Status conference, but not as to the claim objections. If you wish to dispute the tentative ruling as to the claim objections, you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Omnibus claim objection ("Claim Objection," dkt.121) by Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, Michael Criscione and Michael Meyer’s ("Claim Objectors"); stipulation & order continuing hearing (dkt. 129, 131); opposition (dkt.137) of Tarzana Crossing, a Merchant Faire, LLC ("Tarzana Crossing"); no reply is on file
Claim Objectors seek disallowance of the following Claims in full: Claim Nos. 4, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 22, 23, 24,
25, 26, 27, 29, 31, 33, 34, 35, 36 and 37 (the "Claims"). The Claim Objectors assert three grounds for disallowance of all Claims:
the Claims are "interests," not "claims" entitled to a pro rata distribution with other creditors,
the Claims fail to state an amount that is purportedly
claimed, and
the Claims are not supported by a copy of a writing as
required by Rule 3001(c)(1) (Fed. R. Bankr. P.). Dkt. 40, p.39.
The Claim Objectors also object to claims 24, 25, 26, and 37 on an additional ground:
that they are duplicative of claims previously filed by the
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holders of those claims. Id., p.40.
The tentative ruling is to sustain the Claim Objection as to all claims on ground "(w)." In addition, the tentative ruling, as to ground "(z)," is to sustain the objection insofar as disallowing the earlier version of each duplicative claim.
Legal standards for objections to claim
"The term 'claim’ is broadly defined to mean "a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secure, or unsecured . . . . " 11 U.S.C. 101(5)(A) (emphasis added). The term also broadly includes a "right to an equitable remedy for breach of performance . . . ." 11 U.S.C. 101(5)(B). "The Code utilizes this ‘broadest possible definition’ of claim to ensure that ‘all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case." In re SNTL Corp., 571 F.3d 826, 838 (9th Cir. 2009).
Furthermore, "a claim may exist for bankruptcy and discharge purposes long before a cause of action accrues under nonbankruptcy law." Id., at 839. "It is only necessary that the creditor be able to fairly or reasonably contemplate the claim’s existence as of the petition date." Id.
The exclusive grounds under which a debtor may successfully object to a claim are listed in 11 U.S.C. 502(b). In re Campbell, 336 B.R. 430 (9th Cir. BAP 2005); In re Heath, 331 B.R. 424, 435 (9th Cir. BAP 2005).
The Claims, apart from the Claim of Tarzana Crossing With the exception of the Tarzana Crossing Claim (Claim No.
/23-2) (discussed separately below), the tentative ruling is as follows.
The Claims are "equity interests" subject to mandatory subordination (11 U.S.C. 510(b))
Claim Objectors assert that the Claims should be disallowed because they are "interests" rather than "claims." The tentative ruling is that this is correct: the Claims are, by their own admission, equity interests and, as such, must be subordinated to general unsecured claims pursuant to 11 U.S.C.
510(b). See e.g. In re Tristar Esperanza Props., LLC, 782 F.3d 492 (9th Cir. 2015) (a claim arising from an equity interest in a limited liability company is subordinated to general unsecured creditors). See also dkt. 1, PDF pp.11-15 (Debtor's listing of alleged claims as equity interests on bankruptcy schedules).
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Duplicate claims are properly disallowed
Claim Objectors assert that claim 24-1 is a duplicate of claim 19-1, that claim 25-1 is a duplicate of claim 20-1, that claim 26-1 is a duplicate of claim 18-1, and that claim 37-1 is a duplicate of claim 35-1. The tentative ruling is to grant the objection in substance by treating the later filed claims as amendments to the earlier filed claims, and then disallowing the earlier filed claims as duplicative (i.e., disallow claims 18-1, 19-1, 20-1, and 35-1).
The fact that a claim is contingent is not a proper basis to disallow a claim under section 502(b)(1)
Section 502(b)(1) provides that a claim is not allowable if it is unenforceable under the applicable agreement or law "for a reason other than because such claim is contingent or unmatured." 11 U.S.C. 502(b)(1). "Under section 502(b)(1), [ ] contingent claims cannot be disallowed simply because the contingency occurred postpetition." SNTL Corp., 571 F.3d at 838.
Therefore, the tentative ruling is to overrule Claim Objectors' request to disallow the Claims based on the fact that fail to state the amount of their respective claims.
Failure to attach supporting documentation is not a sufficient basis to disallow a claim
Under Heath, "a request for complete disallowance of the claim merely because of inadequate documentation" is not a proper objection. 331 B.R.
424, 435. Accordingly, the tentative ruling is to overrule the Claim Objectors' request to disallow the Claims on the grounds they are not supported by copies of the operating agreement.
The Tarzana Crossing Claim
Tarzana Crossing opposes the Claim Objection on the grounds that its claim (Claim 23-2) "is not based on an equity interest in [Debtor] alone," but is also "based on the same pre-petition claims for which Tarzana Crossing filed suit long before this bankruptcy case was filed " Dkt. 137, p.6:3-5
(emphasis added). But the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") considered and rejected similar arguments in Tristar, 782 F.3d 492.
In Tristar, the Ninth Circuit affirmed the lower courts' determination that
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11 U.S.C. 510(b)'s mandatory subordination applied to the claim of a former member of the debtor limited liability company (the "LLC") who obtained a judgment valuing her equity interest after the LLC did not honor a provision in its operating agreement requiring a buy-back of the withdrawing member’s interest. Id. The Ninth Circuit confirmed that § 510(b) "sweeps broadly" (id. at 495) and held that "the critical question for purposes of § 510(b) . . . is not whether the claim is debt or equity at the time of the petition, but rather whether the claim arises from the purchase or sale of a security" and concluded that the "claim must be subordinated if there is a sufficient ‘nexus or causal relationship between the claim and the purchase’ or sale of securities." Id. at 497 (citation omitted).
The tentative ruling is that Tarzana Crossing’s State Court claims are all directly related to and "arise from" its purchase of "security of the debtor" and Tarzana Crossing has not demonstrated that any damages it might recover from the State Court action against the Debtor would be anything but "damages arising from the purchase . . . of such a security." See 11 U.S.C. 510(b).
Therefore, the tentative ruling is to sustain the Claim Objectors' objection to the Tarzana Crossing Claim and order Claim 23-2 subordinated to general unsecured claims pursuant to 11 U.S.C. 510(b).
The tentative ruling is to deny the Claim Objectors' objection to this claim on all other grounds, for the reasons stated above.
Proposed order: The Claim Objectors are directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court’s final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/29/19.
Bar date: 3/31/20 (dkt.46, timely served, dkt.49).
Procedures order: dkt. 2 (timely served, dkt. 8, 9)
Plan/Disclosure Statement*: N/a
Continued status conference: 10/27/20 at 1:00 p.m. Brief written status report due 10/13/20.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Crossing, A Merchant Faire, LLC's Complaint and Request for Attorney's Fees in the Amount of $2,800.00
fr. 03/31/20, 5/12/20, 6/30/20, 8/18/20, 10/27/20
Docket 7
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the adversary status conference (Calendar No. 23, 12/8/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron Danielle N Rushing
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
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Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Movant(s):
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
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Adv#: 2:20-01012 Tarzana Crossing, a Merchant Faire, LLC v. 110 West Properties, LLC et al
Docket 1
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter has been continued several times to allow time for the parties to participate in settlement negotiations. The tentative ruling is to continue this matter again, concurrent with the status conference in the main case, in view of Debtor's report (main case, dkt.180, p.5:17-20) that Debtor and Tarzana Crossing have tentatively reached a settlement for which Debtor intends to seek approval.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
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Appearances required.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
On 3/31/20 this Court heard oral arguments, but then continued this matter to allow time for the parties to participate in a second round of mediation. Debtor's status report filed in the main case (2:19-bk-24048-NB, dkt. 169) states that mediation was unsuccessful (Id., p.5:1-4) but also represents that Debtor and Tarzana Crossing have tentatively agreed on settlement terms (Id., p.5:12-15).
There is no tentative ruling, but the parties should be prepared (a) to provide this Court with any updates on the status of those negotiations (if any) and (b) to address whether this matter should be further continued or this Court should rule on the merits of the Remand Motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/18/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic
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Instructions").
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which was been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). On 8/4/20, Debtor filed a status report (Main Case, dkt. 136, p.4:22-26) stating that "the parties were unable to resolve their disputes [at the mediation, but] are continuing to make efforts to resolve their disputes through Mr. Gould."
There is no tentative ruling, but the parties should be prepared (a) to provide this Court with any updates on the status of those negotiations (if any) and (b) to address whether this matter should be further continued or this Court should rule on the merits of the Remand Motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20:
Continue as set forth below. Appearances are not required on 6/30/20.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
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Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
This matter was continued to allow time for the parties to participate in a second round of mediation, which has been scheduled to take place on 7/17/20 (Main Case, dkt. 129, p.2:7-8). The tentative ruling is to continue this matter to the same date and time as the continued status conference (see calendar no.15, 6/30/20 at 1:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/12/20:
Continue to 6/30/20 at 1:00 p.m. to allow time for the parties to participate in a second round of mediation. Appearances are not required on 5/12/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 3/31/20:
Appearances required, to address whether, prior to remand, this Court should order mandatory mediation. But, pursuant to Judge Bason's COVID19 Procedures, telephonic appearances are REQUIRED until further notice.
Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 4/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the parties' joint status report (dkt. 11) and the other filed documents and records in this adversary proceeding.
Current issues
Motion for remand (adv. dkt. 7, "Remand Motion") and supporting declaration (adv. dkt. 8), Plaintiff's opposition (adv. dkt. 10), Movants' reply (adv. dkt. 12)
Defendants Dos Cabezas Properties, LLC, Criscione-Meyer Entitlement, LLC, and Michael Criscione (collectively, the "Movants") seek an order remanding this proceeding and for an award of attorneys fees and costs imposed against plaintiff Tarzana Crossing, a Merchant Faire, LLC ("Plaintiff").
For the reasons set forth below, the tentative ruling is to grant the request to remand this removed action, but perhaps defer the remand until after mediation, and deny the request for attorney fees.
Jurisdiction
The parties dispute whether this Court has subject matter jurisdiction to hear this proceeding. The tentative ruling is that this Court has "related to" jurisdiction pursuant to 28 U.S.C. 157(c)(1), because the parties’ dispute arises from an alleged breach of contract for the sale of the estate’s principal asset.
1:00 PM
Mandatory abstention
The tentative ruling is that mandatory abstention applies as follows.
Mandatory abstention under 28 U.S.C. 1334(c)(2) requires seven elements:
a timely motion; (2) a purely state law question; (3) a non-core proceeding under 28 U.S.C. 157(c)(1); (4) a lack of independent federal jurisdiction absent the petition under Title 11; (5) that an action is commenced in a state court; (6) the state court action may be timely adjudicated; (7) a state forum of appropriate jurisdiction exists. [In re Gen. Carriers Corp., 258 B.R. 181, 189 (9th Cir. BAP 2001) (internal quotation omitted).]
These elements are satisfied: (1) the motion was timely - the proceeding was removed on 1/22/20 and Movants filed the remand motion just 30 days later, on 2/21/20; (2) the complaint involves purely nonbankruptcy law questions (breach of fiduciary duty etc., adv. dkt. 7, p. 2:17-21) (Movants state that they amended their complaint on 8/30/19, but there is nothing in the record reflecting what was amended (id., p. 2:21), so this Court bases its ruling on the record presented); (3) the proceeding is noncore - the authorities cited by the removing party (dkt.10, pp.14:24-15:14) are distinguishable because they all involved alleged violations of fiduciary duties within the bankruptcy case itself, not prepetition and nonbankruptcy alleged violations; (4) no independent federal jurisdiction has been asserted;
(5) the action was commenced prepetition, on 12/14/18, in Los Angeles Superior Court; (6) there is no evidence that the proceeding cannot be timely adjudicated in the State Court; and (7) neither party has contested in this Court the State Court’s jurisdiction over the proceeding.
Discretionary abstention
Alternatively, and in addition, the tentative ruling is that discretionary abstention is appropriate.
Discretionary abstention under 28 U.S.C. 1334(c)(1) requires consideration of the following twelve factors:
the effect of lack thereof on the efficient administration of the estate if a Court recommends abstention, (2) the extent to which state law issues predominate over bankruptcy issues, (3) the difficulty or unsettled nature of the applicable law, (4) the presence of a related proceeding commenced in state court or other nonbankruptcy court,
(5) the jurisdictional basis, if any, other than 28 U.S.C. 1334, (6) the degree of relatedness or remoteness of the proceeding to the main
1:00 PM
bankruptcy case, (7) the substance rather than form of an asserted "core" proceeding, (8) the feasibility of severing state law claims from
core bankruptcy matters to allow judgments to be entered in state court with enforcement left to the bankruptcy court, (9) the burden of the bankruptcy court’s docket, (10) the likelihood that the commencement of the proceeding in bankruptcy court involves forum shopping by one of the parties, (11) the existence of a right to a jury trial, and (12) the presence in the proceeding of nondebtor parties.
In re Tucson Estates, Inc., 912 F.2d 1162, 1167 (9th Cir. 1990).
Several of the Tucson factors weigh in favor of abstention. First, the Complaint involves purely state-law issues. Second, this Court would not have jurisdiction over the Complaint but for the Debtor’s bankruptcy petition, because the claims arise under state law and there is no diversity between the parties. Third, the Complaint involves several non-debtor parties who have asserted a right to a jury trial. Fourth, permitting the Complaint to proceed in state court will contribute to the efficient administration of the bankruptcy case because the State Court is the best tribunal to adjudicate the parties’ state law claims. Fifth, although the Complaint is related to the main bankruptcy case because it involves claims relating to the primary asset of the estate, deferring to the State Court to adjudicate the parties’ claims will not unduly interfere with this Bankruptcy Court’s determination of other matters in the bankruptcy case.
Movants’ request for attorneys’ fees is denied
The tentative ruling is to deny Movant’s request for attorneys’ fees because this Court is not persuaded that Plaintiff lacked an objectively reasonable basis for seeking removal of this action because the dispute is related to the primary asset of Debtor’s bankruptcy estate.
Proposed order: Movants are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1) (B).
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status
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conference.)
Venue/jurisdiction/authority.
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation. [Intentionally omitted]
Deadlines: [Intentionally omitted]
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
110 West Properties, LLC Represented By Gregory K Jones Jeffrey Huron
1:00 PM
Danielle N Rushing
Defendant(s):
110 West Properties, LLC Represented By Gregory K Jones
RU, LLC Pro Se
Dos Cabezas Properties, LLC Represented By Thomas F Nowland
Criscione-Meyer Entitlement, LLC Represented By
Thomas F Nowland
Michael Criscione Represented By Thomas F Nowland
FIrst American Title Company Pro Se
Plaintiff(s):
Tarzana Crossing, a Merchant Faire, Represented By
Alan M Feld
1:00 PM
Status Conference re: Post confirmation
fr. 9/24/19, 11/12/19, 1/14/20, 3/10/20, 04/21/20, 6/2/20, 7/14/20, 8/4/20
Docket 1
Debtor(s):
Kim Gordon McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
Joint Debtor(s):
Melissa Amanda McNulty Represented By Matthew D. Resnik
Roksana D. Moradi-Brovia
1:00 PM
fr. 9/19/17, 10/17/17, 4/17/18, 5/1/18, 7/10/18, 9/18/18, 10/26/18, 12/6/18, 12/18/18, 2/5/19, 03/05/19, 04/02/19
04/30/19, 06/04/19, 7/30/19, 9/10/19, 10/1/19, 10/15/19,
11/12/19, 12/10/19, 12/17/19, 2/18/20, 3/3/20, 03/31/20,
8/4/20, 9/1/20, 9/15/20, 10/27/20, 11/10/20, 12/1/20
Docket 323
Tentative Ruling for 12/8/20:
Continue all matters as set forth below. Appearances are not required on 12/8/20. This Court's tentative ruling for 12/1/20 inadvertently set a continued status conference in the L&B case for 12/8/20 at 1:00 p.m., instead of 11:00 a.m., so a copy of the following rulings are being included in the tentative ruling for the 1:00 p.m. calendar (see Calendar No. 25, 12/8/20 at 1:00 p.m.).
Current matters
Combined Status Conference
This Status Conference involves two related bankruptcy cases and associated matters: (a) In re Layfield & Barrett, APC, Case No. 2:17-
bk-19548-NB ("L&B"); (b) In re Layfield, Case No. 2:18-bk-15829-NB ("Lay- Invol."); (c) Pimentel v. Layfield et al, Case No. 2:19-ap-01069-NB ("Pimentel Adv."), (d) Pachulski v. Layfield, Case No. 2:19-ap-01071-NB ("Pachulski Adv.").
L&B, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Lay-Invol, status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Pimentel Adv., status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
1:00 PM
Pachulski Adv., status conference
Continue as set forth in part "(2)" of this tentative ruling, below.
Deadlines/dates. The L&B case was filed as an involuntary chapter 7 on 8/3/17 and converted to chapter 11 on 8/11/17 (L&B dkt. 25). The Lay-Invol case was filed as an involuntary chapter 7 case on 5/21/18 and an order for relief was entered on 12/12/18 (Lay-Invol dkt. 160, 161).
L&B Bar date: 2/5/18 (timely served, L&B dkt. 133, 157)
Lay-Invol Bar date: 4/12/19 (timely served, Lay-Invol dkt.180)
L&B Plan/Disclosure Statement*: TBD. Do not file or serve until further order of this court.
Continued status conference: 5/4/21 at 11:00 a.m. No written status reports required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Layfield & Barrett, APC Pro Se
Movant(s):
Layfield & Barrett, APC Pro Se
1:00 PM
Trustee(s):
Richard Pachulski (TR) Represented By Malhar S Pagay James KT Hunter
2:00 PM
Docket 162
Please see the tentative ruling for the status conference (Calendar No. 4, 12/8/20 at 2:00 p.m.).
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 163
Please see the tentative ruling for the status conference (Calendar No. 4, 12/8/20 at 2:00 p.m.).
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Docket 164
Please see the tentative ruling for the status conference (Calendar No. 4, 12/8/20 at 2:00 p.m.).
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
9/1/20, 10/6/20, 11/10/20
Docket 31
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Application of Joel B. Weinberg of Insolvency Services Group, Inc. and Management Pro Tem, LLC ("Weinberg") for compensation (dkt. 163 165), no opposition is on file
Grant the application and approve (i) $97,500.00 in fees to Insolvency Services Group, Inc. and (ii) $68,518.50 in fees and $905.17 in expenses, for a total award of $69,423.67, to Management Pro Tem, LLC.
Application of Winthrop Golubow Hollander, LLP ("WGH") (dkt. 164 165, 173, 174), no opposition is on file
Grant the Application and approve (i) $345,043.50 in fees and
$13,402.86 in expenses for a subtotal of $358,446.36 plus an additional (ii)
$58,032.50 in fees and $179.50 in expenses for a subtotal of $58,212.00.
Debtor’s Motion for Order (1) Approving Settlement Agreement; (2) Authorizing Debtor to Distribute Funds to Creditors; and (3) Dismissing Chapter 11 Case (dkt. 162), Opposition filed by Estate of Maynard Poynter; Patricia Poynter; Leah Poynter; Adam Poynter; Sean Poynter; and Melissa O’Donnel (collectively, "Poynters") (dkt. 170), and Debtor’s reply (dkt. 171, 172).
This Court anticipates issuing either a written tentative ruling prior to the hearing, or an oral tentative ruling at the hearing.
Proposed orders: Debtor is directed to lodge proposed orders on
2:00 PM
each of the foregoing motions via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. The involuntary petition commencing this case was filed on 9/15/19, and an order for relief in this converted chapter 11 case was entered on 12/18/19 (see dkt.28, 29).
Bar date: 2/28/20 (order, dkt. 58; timely served, dkt. 59).
Procedures order: dkt.30 (timely served, dkt.34)
Plan/Disclosure Statement*: TBD
Continued status conference: If this case is not dismissed, the tentative ruling is to set a continued status conference for 1/5/21 at 2:00 p.m., with no written status report required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
2:00 PM
Adv#: 2:18-01203 The Bird Nest, LLC et al v. Hollister
fr. 8/14/18, 12/18/18, 6/4/19, 11/26/19, 12/10/19, 6/16/20
Docket 1
Tentative Ruling for 6/16/20:
Continue to 12/8/20 at 2:00 p.m. because this adversary proceeding is still stayed as set forth in the tentative ruling for 6/4/19 (reproduced below).
Appearances are not required on 6/16/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/10/19:
2:00 PM
Continue to 6/16/20 at 2:00 p.m. because this adversary proceeding is still stayed as set forth in the tentative ruling for 6/4/19 (reproduced below).
Appearances are not required on 12/10/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/4/19:
Continue to 11/5/19 at 2:00 p.m. because, as set forth in the parties' stipulation (adv. dkt. 8) (approved by order at adv. dkt. 9), this adversary proceeding is stayed pursuant to the parties' settlement that is still being implemented in the bankruptcy case. Appearances are not required on 6/4/19.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 12/18/18:
Continue to 6/4/19 at 2:00 p.m. because, as set forth in the parties' stipulation (adv. dkt. 8) (approved by order at adv. dkt. 9), this adversary proceeding is stayed pursuant to the parties' settlement that is still being implemented in the bankruptcy case. Appearances are not required on 12/18/18.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
2:00 PM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Dana Hollister Represented By David A Tilem
Defendant(s):
Dana Hollister Pro Se
Plaintiff(s):
The Bird Nest, LLC Represented By Howard Steinberg
Roman Catholic Archbishop of Los Represented By
Howard Steinberg
The California Institute of the Sisters Represented By
Howard Steinberg
2:00 PM
fr. 3/9/18, 3/20/18, 3/21/18, 4/17/18, 5/3/18, 5/7/18, 6/12/18, 6/22/18, 7/16/18, 8/3/18, 9/4/18, 11/6/18,
01/15/19, 1/29/19, 2/26/19, 3/26/19, 4/16/19;
04/29/19, 05/21/19, 5/28/19, 6/18/19, 7/2/19; 08/06/19,
10/15/19, 11/12/19, 11/21/19, 01/14/20, 3/3/20, 3/10/20,
04/07/20, 5/19/20, 6/16/20, 6/30/20, 7/14/20, 7/28/20,
8/4/20, 09/15/20, 10/27/20
Docket 1
Tentative Ruling for 12/8/20:
Continue as set forth below. Appearances are not required on 12/8/20.
Current issues
Bobs LLC Motion For Relief From The Automatic Stay (dkt. 936) The hearing on this motion has been continued to 1/26/21 at 2:00 p.m.
pursuant to the parties' stipulation (dkt.1290).
Debtor's transactions out of the ordinary course?
Debtor's status report (dkt.1296, p.4:8-11) states that Debtor has "restarted" her businesses of buying and selling antiques, clothing consulting, and design. At the continued status conference, Debtor is directed to address (i) how, if Debtor had ceased doing those things, they qualify as "ordinary course" (11 U.S.C. 363(b)) and (ii) the historical cost/benefit and risks of those businesses.
Deadlines/dates.
This case was filed on 3/6/18.
Bar date: 8/24/18 (dkt. 367, timely served per dkt. 383)
Plan/Disclosure Statement*: TBD
Continued status conference: 1/26/21 at 2:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status
2:00 PM
conference).
Limited Notice: A "Core Service List" has been established (see
dkt.97, p.3:4-17, dkt.195), as modified by any updates (contact Debtor for latest list).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Dana Hollister Represented By David A Tilem Mark A Kressel Alan M Insul
2:00 PM
Docket 134
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 11/10/20 at 2:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the status conference (Calendar. No. 5, 9/29/20 at 2:00 p.m.).
Tentative Ruling for 8/18/20:
Please see the tentative ruling for the status conference (Calendar No. 3, 8/18/20 at 2:00 p.m.).
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
7/2/19, 7/30/19, 9/17/19, 11/12/19, 12/17/19,
3/10/20, 6/16/20, 8/18/20, 9/29/20, 11/10/20
Docket 5
Tentative Ruling for 12/8/20:
Appearances required.
Current issues
Pre-trial conference
All parties, witnesses, and attorneys should be prepared to participate in a brief technical pretrial conference. This Court does not intend to address any substantive issues at this technical pretrial conference.
Deadlines/dates. This case was filed on 5/15/18.
Bar date: 8/14/18 (dkt. 35), timely served (dkt. 38).
Plan/Disclosure Statement (dkt. 133, 134)*: Confirmation hearing 2/16/21 at 10:00 a.m. (dkt. 188).
Continued status conference: 2/16/21 at 10:00 a.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are
2:00 PM
appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
R44 LENDING GROUP, LLC a Represented By Jeffrey S Shinbrot
2:00 PM
10/23/20, 11/12/20
Docket 65
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the status conference (Calendar No. 11, 12/8/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
Docket 313
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the status conference (Calendar No. 11, 12/8/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
2:00 PM
4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20,
10/14/20, 10/22/20, 11/12/20
Docket 1
Tentative Ruling for 12/8/20:
Continue as set forth below, pursuant to Debtor's status report (dkt.357). Appearances are not required on 12/8/20.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
At the continued hearing, Debtor is directed to address whether a motion for relief from the automatic stay/approval of settlement/other relief has been filed and/or granted in the Florida Receivership case. Debtor is also directed to provide an update regarding any proposed resolutions with the Guptas and others, and any proposed refinancing.
(c) MOR (10/31/20, dkt.355)
Debtor is expending substantial sums described only as "marketing."
2:00 PM
At the continued hearing, Debtor is directed to address what is the actual nature of these expenses.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 12/22/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/12/20:
Appearances required via ZoomGov.
ZoomGov Instructions Meeting ID: 161 692 1904 Password: 008720
Meeting URL: https://cacb.zoomgov.com/j/1616921904
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
2:00 PM
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of the Florida Receivership and any plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: Based on Debtor's status report (dkt.351), this Court anticipates setting a continued hearing/status conference on 12/8/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
2:00 PM
COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[Note: The hearing on 10/6/20 was continued to 10/14/20 (dkt.339)] Tentative Ruling for 10/14/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/27/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post- confirmation status conference for 2/9/21 at 2:00 p.m. and a 1/26/21 deadline to file a post-confirmation status report.
*Warning: special procedures apply (see order setting initial status
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conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
The tentative ruling is that (x) Debtor has adequately addressed Post's objection; (y) Debtor has adequately addressed the non-materiality of her proposed minor modifications to the Plan (i.e., re-balloting is not required); and (z) Debtor has provided sufficient arguments and evidence to overrule most of the Guptas' objections. The Guptas' objections that Debtor has not yet sufficiently addressed are explained below.
Best Interest Test (11 U.S.C. 1129(a)(7)): Debtor's calculations require an adjustment, but even with an adjustment the Guptas
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have not rebutted Debtor's showing that the Plan satisfies the best interest test
The tentative ruling is that Debtor's alternative liquidation analysis (dkt.335, pp.11-12) should be adjusted to account for the possibility that the secured claim asserted by Patch Of Land ("Patch" or "POL") might be reduced to some extent, based on objections to default interest and other claims by the bankruptcy estate. But the tentative ruling - based on this Court's familiarity with numerous disputes in other cases regarding default rates of interest and other charges - is that the possibility of such reduction, discounted to present value, is less than shortfall in funds that would be availabe in any hypothetical chapter 7 case. See Debtor's Reply (dkt.335),
p.12. See generally, e.g., East-West Bank v. Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019)
The tentative ruling is that a precise dollar estimate is not required because the shortfall is hundreds of thousands of dollars; the discount to Patch's claim would not be greater than that. In other words, even with the adjustment to Patch's claim as described above, there would be $-0- for general unsecured creditors in a hypothetical chapter 7 case.
Alternatively, assuming for the sake of discussion that any adjustments to Debtor's liquidation analysis would be enough to provide any projected recovery for nonpriority unsecured creditors, that in itself does not establish that liquidation would be in the best interests of creditors. Rather, the issue would require further evidence because any such projected chapter 7 recovery still would have to exceed the projected recovery under Debtor's proposed Plan, and the latter requires more evidence (as noted below).
Adequate means for implementation (11 U.S.C. 1123(a)(5)) and feasibility (11 U.S.C. 1129(a)(11))
Debtor is directed to address whether she has evidence of sufficient loan commitments and/or gift commitments from family and friends to make her proposed commitments in the Plan adequate and feasible. See, e.g., Debtor's Reply (dkt.335), p.14:2-8. The parties are directed to address whether any evidentiary hearing will be necessary to address the sufficiency of such evidence, and the possible scheduling of any such evidentiary hearing and any related matters.
Deadlines/dates. This case was filed on 7/17/19.
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Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/6/20 at 2:00 p.m. and/or an evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post-confirmation status conference for 1/12/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
8:30 AM
Docket 81
ZoomGov Instructions for all matters on today’s calendar: Meeting ID: 160 164 8558
Password: 719984
Meeting URL: https://cacb.zoomgov.com/j/1601648558
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Please connect at least 5 minutes before the start of your hearing, and wait with your microphone muted until your matter is called. You do not need to call Chambers for advance approval. ZoomGov appearances are free.
Time when these tentative rulings were first posted (for purposes of determining when anyone contesting the tentative ruling must notify other parties of intent to do so): see the time stamp at the bottom of this page.
Tentative Ruling for In re Ramos [2:16-bk-21902-NB]:
Appearances are not required.
This matter has been resolved by the Chapter 13 Trustee's Amended Comments on or Objection to (dkt. 89) and order thereon.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the
8:30 AM
first matter on today’s calendar (i.e., page 1 of the posted tentative rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Jose Alberto Ramos Represented By Claudia C Osuna
Joint Debtor(s):
Vanessa Ramos Represented By Claudia C Osuna
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 84
Appearances are not required.
The tentative ruling is to grant the motion, subject to the terms set forth in the Chapter 13 Trustee's Amended Comments on or Objection to (dkt. 99).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Alexander Dela Cruz Del Rosario Represented By
Sevan Gorginian
Joint Debtor(s):
Marie Chita-Linda Vergara Del Represented By Sevan Gorginian
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 45
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 48).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Paulett Jones Represented By
R Grace Rodriguez
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 35
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 37).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Brooke Dworzan Represented By Julie J Villalobos
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 57
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office to further continue this matter or (2) withdrawal of the motion by Debtor. There is no tentative ruling, but the parties should be prepared to address the issues raised by the Chapter 13 Trustee (dkt. 59).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Shirley Swayne Represented By Tina H Trinh
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 14
Appearances required.
There is no tentative ruling. The parties should be prepared to address the issues raised in the motion papers (dkt. 14), the opposition papers (dkt. 18), and the reply (dkt. 20).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Portia D. Austin Represented By
David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 36
Continue to 1/21/21 at 8:30 a.m. to address the following issues. Appearances are not required on 12/17/20.
Reasons:
Evidence of senior debt. Judge Bason's tentative ruling is to require evidence of the senior debt owed to Hero Renovate America at or near the petition date (6/30/20). The motion's evidence (dkt. 36 Ex. E) is as of 3/2/20, which is too old in view of possible loan modifications/reductions that could have occurred. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
The tentative ruling is also that any evidence of the senior debt owed to Hero Renovate America should demonstrate that (i) the debt is owed by Debtors and (ii) the debt is secured against the subject property. The motion's evidence (dkt. 36 Ex. E) provides only an estimated remaining balance of an unspecified loan and the date of the estimate (without any information tying the loan to Debtors, and without any evidence that the loan is secured by a recorded deed of trust).
Appraisal; date of valuation. The junior lienholder has requested (dkt. 37) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
(iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Juan Carlos Ulloa Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Charina Antoinette Ulloa Represented By
Hasmik Jasmine Papian
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 32
Appearances required.
There is no tentative ruling. The parties should be prepared to address the issues raised in the motion papers (dkt. 32) and the opposition papers (dkt.34).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Graciela Gomez Represented By Christine A Kingston
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 65
Continue to 1/21/21 at 8:30 a.m. to address the following issues. Appearances are not required on 12/17/20.
Reasons:
Service.
The motion papers were not served on the Internal Revenue Service in required manner. See Rule 7004(b)(4)&(5) (Fed. R. Bankr. P.); Local Bankruptcy Rule 2002-2(c)(2). Addresses and instructions are included in the Court Manual. Debtor is directed to serve the moving papers in a manner consistent with this ruling and file a proof of service by no later than 12/31/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Kip Scott Rolfe Represented By Thomas B Ure
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 29
- NONE LISTED -
Debtor(s):
Carol Elizabeth Dorame Represented By Nicholas M Wajda
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/22/20
Docket 76
Debtor(s):
Roberto Rodriguez Represented By Vernon R Yancy Renae Pearson
Joint Debtor(s):
Patricia Rodriguez Represented By Vernon R Yancy
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 11/19/20
Docket 109
Tentative Ruling for 12/17/20:
Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office and the objecting creditors to continue this matter or (2) withdrawal of the motion by Debtor. The tentative ruling is to deny the motion for the reasons set forth below.
Analysis
At the 11/19/20 hearing, this Court was persuaded to continue the matter to allow the parties to file additional papers. The Court has reviewed Debtor's supplemental Declaration (dkt. 123), the supplemental Opposition by siblings and creditors Patricia A. Kennedy and Vincent J. Kennedy (the "Siblings") (dkt. 124), Debtor's supplemental Reply (dkt.125), and the documents reviewed in preparation of the tentative ruling for 11/19/20.
The tentative ruling is that, although Debtor's evidentiary objections are well taken, nevertheless (i) Debtor's supplemental declaration has not established that his alleged financial hardship is in fact due to the pandemic as required by 11 U.S.C. 1329(d) and (ii) Debtor has not established good faith for a plan modification as required by 11 U.S.C. 1329(b)(1).
Debtor has provided evidence indicating that his brother has had a reduction in income, that he was unsuccessful in finding replacement tenant to rent the property, and why preparing the garage for use as a rentable space is not possible. Dkt. 123, pp. 2–5. Debtor's evidence of his brother's reduction in income appears to be adequate, as is his evidence of the apparent expense of repairing and furnishing the garage and his alleged intent from the outset not to rent the garage but instead to rent the entire house out if necessary to fund his "step up" plan (the Siblings dispute this, but they do not provide admissible evidence). But Debtor has not adequately explained his efforts to lease the property.
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Debtor alleges that he placed a "for rent" sign in front of the property.
Dkt. 123, p.2. But Debtor does not explain when this sign was put up, how long the sign remained, and what other efforts he undertook when it became clear that the for rent sign was unsuccessful in attracting a tenant. For this reason and the reasons stated in the tentative ruling for 11/19/20, the tentative ruling is to deny the motion.
Notwithstanding all of the foregoing, the parties are directed to meet and confer to see if a compromise can be reached. This Court is concerned that if the parties do not settle then there could be considerable additional litigation between Debtor and the Siblings, and that such litigation might result in added expense without added benefit for the parties, and also could result in adverse consequences to third parties.
If Debtor and the Siblings reach a compromise then, depending on the nature of the compromise and any offers of proof, this Court may well be able to find, in the absence of evidentiary objections from the Siblings and the Chapter 13 Trustee, that there is sufficient "good faith" and compliance with section 1329(d) to grant a modified version of the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/19/20:
NOTE: For purposes of the deadline to notify opposing counsel/parties of an intent to contest tentative rulings (1/2 the time between the time of posting and the hearing time), the following Tentative Rulings were first posted shortly before:
1:30 p.m. on 11/17/20.
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Appearances required, absent either (1) an agreement with the Chapter 13 Trustee's office and the objecting creditors to continue this matter or (2) withdrawal of the motion by Debtor. The tentative ruling is to deny the motion for the reasons set forth below.
Analysis
This Court has reviewed the objection by siblings and creditors Patricia
A. Kennedy and Vincent J. Kennedy (the "Siblings") (dkt. 111), the response of the Chapter 13 Trustee (dkt. 113) , Debtor's reply (dkt. 120), and the Siblings' unauthorized sur-reply (dkt. 121). As a preliminary matter, the tentative ruling is to strike the unauthorized sur-reply. Nevertheless, the tentative ruling is to deny the motion for the following reasons.
Modification can be requested under 11 U.S.C. 1329. Section 1329(c) usually provides that a plan as modified may not exceed five years, but the CARES Act added section 1329(d), which permits an extension, in certain circumstances, of up to seven years after the first payment under the original plan was due (for chapter 13 plans confirmed prior to 3/27/20).
To be eligible for that extension Debtor must establish that he "is experiencing or has experienced a material financial hardship due, directly or indirectly, to the coronavirus disease 2019 (COVID-19) pandemic" and if the modification "is approved after notice and a hearing." (Emphasis added.) The tentative ruling is that Debtor has not established that his alleged financial hardship is in fact due to the pandemic.
First, Debtor asserts that his brother, who has been occupying part of the property, has been making "contributions" to fund the plan but had a reduction in income due to the pandemic and cannot afford to continue with such "contributions" or pay rent. Debtor also asserts that he has been unable to find paying tenants due to the pandemic. Where is the evidence of the brother's financial inability to pay fair rent? Where is the evidence of Debtor's efforts to find a paying tenant (and evict his brother)?
Second, Debtor alleges that his garage is "packed with boxes and other household items, and is not habitable." Reply (dkt.120), p.7:1-3 & Ex.3. Why has it not been possible, since the inception of this case and especially
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now, to clean up and rent out this space?
There might (or might not) be good explanations for these things. But Debtor fails to address them.
The same concerns apply under section 1325(a), made applicable to any proposed plan modification by section 1329(b)(1). Section 1325(a)(3) requires that "the plan has been proposed in good faith and not by any means forbidden by law." See In re Sunahara, 326 B.R. 768, 772-84 (9th Cir. BAP 2005).
The "good faith" determination "necessarily requires an assessment of a debtor's overall financial condition including, without limitation, the debtor's current disposable income, the likelihood that the debtor's disposable income will significantly increase ..." and any other facts and circumstances bearing on the issue of good faith. Id. at 781-82. For the same reasons stated above, the tentative ruling is that Debtor has not established his good faith.
In sum, Debtor has not satisfied section 1329(d) - by failing to provide enough evidence that it is the pandemic that has made the plan infeasible - nor has he provided sufficient evidence of his good faith under section 1325(a)(3). Therefore the tentative ruling is to deny the motion.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Matthew B. Kennedy Represented By Michael Jay Berger
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 10/24/19, 11/21/19, 01/23/20, 5/28/20
Docket 37
Debtor(s):
Tammy Javonillo-Zimmerman Represented By Thomas B Ure
Movant(s):
United States Trustee (LA) Represented By Ron Maroko
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 07/23/20, 9/24/20, 10/22/20
Docket 43
Tentative Ruling for 12/17/20 (same as for 10/22/20 and 9/24/20)
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (1) the status of Debtor's attempted loan modification, (2) whether, if Debtor is in a trial modification period, this hearing should be continued, (3) alternatively whether, if Debtor has been granted a loan modification, this claim objection is moot, or (4) alternatively whether, if the loan modification was denied, this Court should adopt its tentative ruling from 7/23/20 to deny the claim objection, and whether any such denial should be with or without leave to amend (i.e., with leave to file any new claim objection).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/22/20 (same as for 9/24/20):
Appearances required.
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There is no tentative ruling, but the parties should be prepared to address (1) the status of Debtor's attempted loan modification, (2) whether, if Debtor is in a trial modification period, this hearing should be continued, (3) alternatively whether, if Debtor has been granted a loan modification, this claim objection is moot, or (4) alternatively whether, if the loan modification was denied, this Court should adopt its tentative ruling from 7/23/20 to deny the claim objection, and whether any such denial should be with or without leave to amend (i.e., with leave to file any new claim objection).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 7/23/20:
Overrule the claim objection for the reasons set forth in the Bank of New York Mellon opposition (dkt. 59). Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Tausha Suzette Petrotta Represented By Donna R Dishbak
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 8/27/20, 9/24/20, 11/19/20
Docket 49
Tentative Ruling for 12/17/20:
Appearances required.
Key documents reviewed (in addition to motion papers): Lienholder Raeisi Group Inc.'s opposition papers (dkt. 52-59), Debtor's notice of hearing (dkt. 64), stipulation & order continuing hearing (dkt. 72, 74), amended motion (dkt. 76), order continuing hearing (dkt. 78), declarations re third party appraiser (dkt. 79, 80, 82) & stipulation/order re same (dkt. 83, 85), stipulation & order changing third party appraiser (dkt. 90, 92), Lienholder's supplemental opposition papers (dkt. 94, superseded by dkt. 95) & evidentiary objections (dkt. 96), Debtor's appraisal critique (dkt. 97), Debtor's reply brief (dkt. 98), Lienholder's reply (dkt. 101) and evidentiary objections (dkt. 99, 100)
Payment of appraiser
At the parties' request, this Court appointed an appraiser to serve as a court-appointed expert under Rule 706 & 1101(a)&(b) (Fed.R.Evid.). Debtor reports (dkt.98, p.4:10-13) that Lienholder has not paid its half of the appraiser's fee. The tentative ruling is that any delayed payment (or non- payment) reflects negatively on this Court, and risks impairing the ability of this Court and parties in interest to retain experts in future.
Lienholder is directed to address whether, in response to Debtor's (hearsay) assertion, it can provide evidence of payment. In addition, Lienholder is directed to address whether this Court should issue an order to show cause why it should not be sanctioned. Alternatively, the tentative ruling is that, having agreed to the procedure but then having apparently failed to abide by it, to the detriment of other persons and this Court, Lienholder will be judicially estopped from asserting its arguments unless and until full compensation to the appraiser is made, including any late charges, interest,
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and other charges.
Presuming that Lienholder will not be judicially estopped, the tentative ruling on the merits is as follows.
The Property is subject to Section 522(f)
Previously this Court sua sponte raised the issue whether the Property is property of the bankruptcy estate, subject to 11 U.S.C. 522(f). That appears to have opened a "can of worms" because Lienholder now makes arguments that appear to misconstrue the issue entirely. See Tentative Ruling for 8/27/20, section "(c)" (reproduced below and in Lienholder's RJN (dkt.95), Ex.D, at PDF pp.19-23).
Lienholder argues that "the Subject Property is not community property but rather Debtor's sole property, thus, the lien [against Debtor's non-debtor husband - i.e., the larger of the two abstracts of judgment -] is not the proper subject of the Debtor's bankruptcy estate" and Debtor "has no standing" to avoid that lien. Lienholder Supp. Opp. (dkt.95), p.10:8-12. See also id., pp.3:19-4:7 & nn.2-4; Lienholder RJN (dkt.95), Ex.A (2015 grant deed stating that Debtor conveys it as her sole and separate property to her husband and herself as trustees of a family trust); Burrows Decl. (dkt.95), Ex.B, pp.1-2).
The tentative ruling is that Lienholder completely misses the mark.
First, regardless whether the Property is Debtor's separate property or community property, and regardless whether the lien at issue arises from a debt against Debtor's non-debtor husband, the fact remains that if the lien impairs Debtor's exemption in the Property then it is avoidable according to the plain meaning of section 522(f). See 11 U.S.C. 522(f).
Second, Lienholder's reliance on In re Obedian, 546 B.R. 409, 412-13 (Bankr. C.D. Cal. 2016), is misplaced. In the quoted portion of that decision (dkt.95, p.12:9-16) the Court was hypothesizing a situation in which, pursuant to a joint tenancy, the non-debtor spouse had a one-half interest that was not part of the debtor's estate. But in this instance the Property is part of the estate - it appears to be Debtor's separate property, which is obviously part of the estate, or alternatively it is community property, which is part of the estate under 11 U.S.C. 541(a)(2).
For all of these reasons, the tentative ruling is that the Property and Lienholder's abstracts are subject to section 522(f).
Calculations under section 522(f)
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The appraiser jointly chosen by the parties, Leroy Thomas III, opines
that the Property's value as of the petition date of 12/17/19 was
$1,150,000.00. See Thomas Appraisal (dkt. 95, Ex.D, at PDF pp.31-55, and dkt. 97, Ex.B, at PDF pp.25-50). Debtor provides evidence and calculations (dkt. 98, p.2:18-25) as follows:
Fair market value (per Thomas Appraisal): | $1,150,000.00 |
1st TD | ($ 423,532.50) |
2d TD | ($ 344,706.22) |
Ygreen | ($ 132,462.30) |
Exemption | ($ 100,000.00) |
Equity before Lienholder's Abstracts of Judgment | $ 149,298.98 |
Abstract (recorded 7/27/18) | $ 57,910.31 |
Abstract (recorded 8/24/18) | $ 470,145.31 |
The tentative ruling is to overrule the evidentiary objections (dkt. 96) of Lienholder to Debtor's evidence of the Ygreen lien. Debtor, as the owner of the Property, is competent to opine as to its value, and in doing so she, like any expert, can rely on hearsay (see Rule 703 & 1101(a), Fed.R.Evid.) and explain her calculations of liens and the net equity (or, in her view, negative equity). She has also provided adequate foundation and authentication.
Alternatively, the tentative ruling is that the public records of Ygreen's lien and the dollar amount claimed thereunder qualify for exceptions to the hearsay and authentication rules (see Rules 803(14), 803(15), 807, 907(b)(7)) and, again Debtor has provided adequate foundation.
Lienholder offers no reasons to doubt the existence and dollar amount of the Ygreen lien (or Debtor's other calculations). The tentative ruling is to accept those calculations, subject to any adjustment in value based on the parties' evidence and arguments.
Non-binding appraisal, but binding determination by this Court Lienholder argues that Debtor fails to cite "any legal authority
addressing the Court's discretion to disregard a court-appointed, third-party neutral's report in deciding a pending issue." Lienholder Reply (dkt.101), p.5:10-13. The tentative ruling is that this has it backwards: this Court has always expressed its skepticism that it has any power to make a third-party appraiser's opinion of value binding absent both parties' consent, and this
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Court's records of the prior hearings do not include any such consent. To the contrary, this Court's recollection is that it was Lienholder who declined to consent, and this Court's order approving the parties' stipulation selecting the appraiser and procedures (dkt. 92, copied at RJN (dkt.95), Ex.C) provides that this current hearing is the "final hearing" at which the parties can make their final arguments "and the Court can make its determination of the property's value." Id., p.2:20-25 (emphasis added).
Therefore, the tentative ruling is that both parties were free to provide evidence and arguments contesting the valuation in the Thomas Appraisal. Debtor's proposed adjustments to that valuation are addressed below.
Debtor's proposed adjustments
Debtor argues for a $130,000.00 reduction in the Thomas Appraisal valuation, based on a letter report by a civil engineer, Arto Kazarians. Debtor Supp. Brief (dkt.97), pp.10:7-12:13 & Ex.A, at PDF pp. 20-24. The tentative ruling is to reject this adjustment.
First, althought the tentative ruling is that Lienholder's evidentiary objections (dkt. 99) go to the weight, not the admissibility, of this evidence, nevertheless the tentative ruling is to give that testimony much reduced weight because it lacks a detailed explanation of Mr. Kazarians' expertise and the foundations for his conclusions. Second, and more importantly, the tentative ruling is not to make any adjustment on account of Mr. Kazarians' observations about the Property because, as Lienholder points out (dkt.101, pp.7-8, no.6), Debtor could have provided to the appraiser a copy of Mr.
Kazarians' report, and/or could have pointed out the alleged structural issues with the Property. This Court's records show that at the hearing on 8/27/20 Debtor's counsel asked if it would be permissible to communicate with the third party appraiser, and this Court confirmed that it would be, provided that Lienholder was included in any communication (i.e., copied on any emails, or joined in any telephone call). Third, although the Thomas Appraisal does not itemize the issues identified by Debtor's engineer, it does take into consideration the overall condition of the Property, and the tentative ruling is that this sufficiently accounts for any reduction in what a willing buyer would pay based on the condition of the Property.
Debtor's other proposed adjustments are based on critiques by her original appraiser, Jennifer Landon, of the Thomas Appraisal. See Debtor Supp. Brief (dkt. 97), pp.12:14-14:16 and attached Landon Decl, pp.17-19.
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The tentative ruling is to overrule Lienholder's evidentiary objections (dkt.100) because Ms. Landon's expertise as an appraiser is sufficiently established and, based on that expertise and the foundations she provides, she is qualified and able to opine on the issues (including any ultimate issues, per Rule 704, Fed.R.Evid.) and rely on hearsay (Rule 703, Fed.R.Evid.).
As to the specific proposed adjustments, the tentative ruling is not to make any adjustment based on the number of comparable sales being four actual sales instead of five to six (dkt.97, p.17:17-21), and to make a modest aggregate adjustment of $50,000.00 based on the other issues set forth in the Landon delaration, to arrive at a total valuation of $1,100,000.00.
Based on the foregoing, the tentative ruling is to reduce the net equity in the Property to which Lienholder's liens can attach from $149,298.98 to
$99,298.98. Accordingly, the tentative ruling is to grant the motion in part, and avoid the Lienholder's liens in excess of that dollar amount.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 9/24/20:
Appearances required.
There is no tentative ruling, but the parties should be prepared to discuss (i) the status of their negotiations, (ii) whether they have agreed upon a third party appraiser, and (iii) what procedures this Court should adopt for determination of the nature of Debtor's interest in the subject property. See stipulation (dkt.72) and order thereon (dkt.74).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Key documents reviewed (in addition to motion papers): Raeisi Group Inc.'s opposition papers (dkt. 52-59), Debtor's notice of hearing (dkt. 64), no reply is on file
Current issues
Debtor seeks an order under 11 U.S.C. 522(f) avoiding two judgment liens against Debtor’s residence, located at 1316 Irving Avenue, Glendale, California 91201 (the "Property"), recorded in favor of Raeisi Group, Inc. ("Lienholder"): (w) a judgment lien (the "Non-Debtor Lien") securing a
$470,145.31 judgment entered against Debtor’s non-filing spouse, Erik Hovsepian (the "Non-Filing Spouse") and (x) a judgment lien securing a
$57,910.31 judgment entered against Debtor (the "Debtor Lien").
Legal standard
Section 522(f) provides, in relevant part, that a debtor:
May avoid the fixing of a lien on an interest of the debtor in
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property to the extent that such lien impairs an exemption to
which the debtor would have been entitled under subsection (b) of this section, if such lien is—
a judicial lien [11 U.S.C. 522(f)]
Section 522(f)(2) provides a formula for calculating the extent to which a lien impairs an exemption: add the lien, all other liens on the property, and the amount of the exemption that the debtor could claim if there were no liens on the property and then subtract from that amount the value of the debtor’s interest in the property in the absence of any liens. In re Meyer, 373 B.R. 84, 86 (9th Cir. BAP 2007); In re Pike, 243 B.R. 66, 71 (9th Cir. BAP 1999).
When multiple liens are involved, there is authority that the liens must be "subtracted in order of reverse priority." In re Hanger, 217 B.R. 592, 595 (9th Cir. BAP 1997), aff'd, 196 F.3d 1292 (9th Cir. 1999). See also In re Heaney, 453 B.R. 42, 48 (Bankr. E.D.N.Y. 2011) (same).
Procedural issues
Debtor did not comply with Local Bankruptcy Rule ("LBR") 4003-2(b) (1), which requires a separate notice and motion for each lien that is sought to be avoided. The tentative ruling is to excuse Debtor’s non-compliance because it does not appear to have prejudiced Lienholder, but Debtor’s counsel is cautioned that failure to comply with applicable rules in future may result in adverse consequences.
Alternatively, the tentative ruling is that Lienholder has waived and forfeited any assertion of prejudice because this issue was not raised in its’ opposition papers.
The Property is property of the estate
Debtor states that she purchased the Property with her then-husband, now estranged, in April 2008, and that title to the Property is in the name of Erik Hovsepian and Elin Khachatourian Family Trust. Dkt. 49, pdf. p. 5, para.
7. Debtor asserts a community property interest in the Property. Dkt. 15, p.12.
Although not raised by either party, the tentative ruling is that the Property is property of the estate, notwithstanding the form of title. See Cal. Fam. Code 760 (Under California law, all property acquired by a spouse during marriage is presumptively community property); Cal. Fam. Code 761(a) ("[u]nless the trust instrument . . . expressly provides otherwise, community property that is transferred in trust remains community property during the marriage . . . if the trust . . . is revocable "); 11 U.S.C. 541(a)
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(1)&(2) (property of the estate includes "all legal or equitable interests of the debtor in property as of the commencement of the case," and "[a]ll interests of the debtor and the debtor’s spouse in community property as of the commencement of the case "); In re Brace, 9 Cal.5th 903 (Cal. Supreme
Ct. 7/23/2020); In re Cutter, 398 B.R. 6, 19 (9th Cir. BAP 2008) (citing 11
U.S.C. 541(a)(1) and (c)(2)) ("While assets transferred to a trust do not ordinarily become property of the bankruptcy estate of the trust’s trustee, powers that a debtor is a trustee of a trust may exercise for his or her own benefit become property of the estate" and "to the extent a debtor holds a beneficial interest in a trust, that beneficial interest becomes property of the estate, unless it is protected by a valid spendthrift provision").
Avoidability of the Non-Debtor Lien
Lienholder argues that Debtor cannot use section 522(f) to avoid the Non-Debtor Lien because the lien secures a judgment against Debtor’s Non- Filing Spouse who is not a debtor in bankruptcy nor a party to this motion.
Dkt. 52, p.2:19-23. Lienholder also argues that the Non-Debtor Lien is not avoidable because Debtor’s Non-Filing Spouse would be prohibited from avoiding the lien if he were to commence his own chapter 13 bankruptcy case because the debt is nondischargeable under 11 U.S.C. 523(a)(4). Id. p.
9:18-10:13. In support of this argument, Lienholder relies on the non-binding case of Castle v. Parrish, 29 B.R. 869, 874 (Bankr. S.D. Ohio 1983). But Castle is inapplicable, because it involves the avoidability of a lien securing child support, which is a debt "of a kind that is specified in section 523(a)(5)," and which section 522(f)(1) unambiguously excepts from avoidance. See 11
U.S.C. 522(f)(1)(A) (. the debtor may avoid the fixing of a lien on an interest
of the debtor in property to the extent that the lien impairs and exemption to which debtor would have been entitled under subsection (b), if such lien is – a judicial lien, other than a judicial lien that secures a debt of a kind that is specified in section 523(a)(5)") (emphasis added). Although Lienholder argues that its judgment against Debtor’s Non-Filing Spouse is nondischargeable under 11 U.S.C. 523(a)(4), Rule 7001(6) (Fed. R. Bankr.
P.) would require the initiation of an adversary proceeding for any determination of nondischargeability in bankruptcy. See In re Kimmel, 367
B.R. 174, 180-81 (Bankr. N.D. Cal. 2007) (reviewing procedures for nondischargeability action against non-debtor spouse).
In addition, dischargeability is not at issue. That is an "in personam"
concept, but Debtor seeks an "in rem" remedy: avoiding the Non-Debtor Lien
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on estate Property. Accordingly, the tentative ruling is that any issues regarding the dischargeability of Lienholder’s debts against the Non-Filing Spouse are not properly before this Court in this hearing.
The tentative ruling is also that on the issue of avoidability, Debtor can avoid the Non-Debtor Lien if Debtor can establish that it impairs her claimed homestead exemption. See, e.g., In re Obedian, 546 B.R. 409, 423-25 (Bankr. C.D. Cal. 2016) (concluding that debtor could avoid judicial lien against non-filing spouse because lien attached to community property interests as a debt incurred during marriage and, because the property was property of the estate, the lien impaired debtor’s exemption).
Valuation
Debtor asserts that to the extent the liens exceed the $66,761.28 equity in the Property after deducting senior liens and Debtor’s homestead exemption from Debtor’s alleged $935,000 fair market value, Lienholder’s liens are avoidable. Dkt. 4, p. 4. Conversely, Lienholder argues that the Property is actually worth $1,315,000, and therefore do not impair Debtor's homestead exemption in any amount. Dkt. 55.
The parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
(iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Elin Khachatourian Represented By Jeffrey J Hagen
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 12
Tentative Ruling for 12/17/20:
Appearances required.
This matter was continued to allow time for the parties to meet and confer to resolve their disputes. It appears they have been unable to do so to date.
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
Tentative Ruling for 11/19/20:
Appearances required.
This matter was continued to allow time for the parties to meet and confer to jointly select an appraiser. It appears they have been unable to do so to date.
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 10/22/20:
Appearances required.
This matter was continued to allow time for the junior lienholder to obtain an appraisal of the subject property. This Court has reviewed the parties' supplemental papers (dkt. 34, 35 & 39).
There is no tentative ruling, but the parties should be prepared to address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent), (iii) through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/27/20:
Continue to 10/22/20 at 8:30 a.m. to address the following issues. Appearances are not required on 8/27/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
8:30 AM
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Reasons:
Appraisal; date of valuation. The junior lienholder has requested (dkt.
22) additional time to obtain an appraisal. Debtor is directed to provide reasonable access for that purpose. The junior lienholder is directed to file and serve the appraisal at least 14 days before the continued hearing. Note: Judge Bason's tentative ruling is to require valuations at or near the petition date. See In re Gutierrez, 503 B.R. 458 (Bankr. C.D. Cal. 2013).
At the continued hearing the parties should address how they propose to resolve their disputes - e.g., (i) with an evidentiary hearing; (ii) with a court ruling based solely on the written record (to save costs, if all parties consent),
through mediation, or (iv) through appointment of an appraiser (jointly selected by the parties/their appraisers) as the court's own expert under FRE 706.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Maria D. Gomez Represented By
Leroy Bishop Austin
8:30 AM
Joint Debtor(s):
Jose Meneses Represented By
Leroy Bishop Austin
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 38
Tentative Ruling for 12/17/20:
Appearances required.
This matter has been continued a number of times to allow time for the parties to communicate with a senior lienholder and negotiate an amicable resolution of their dispute. There is no tentative ruling, but the parties should be prepared to provide an update on the status of their negotations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/19/20:
Continue to 12/17/20 at 8:30 a.m. for the reasons stated in the Status Report (dkt.59) filed by BBV. Appearances are not required on 11/19/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
8:30 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/24/20:
Sustain the claim objection in part, overrule it in part, and continue the hearing, all as set forth below. Appearances required.
Key documents reviewed (in addition to motion papers): BBV Profit Sharing Plan ("BBV") opposition papers (dkt. 40, 41), Debtor’s reply (dkt. 42), BBV’s unauthorized sur-reply (dkt. 43), BBV’s amended proof of claim 6-2 ("AmClaim")
Analysis:
Advances of funds to the senior lienholder
Nonbankruptcy law
The tentative ruling is that Debtor is correct that under nonbankruptcy law a junior lienholder is not authorized to advance more funds than what is necessary to cure any arrears on a senior lien (Cal. Civ. Code 2924c(a)(1)) and BBV has not demonstrated that it was necessary to advance $91,930.10 to the senior lienholder, when it appears that the senior lienholder’s arrears as of the petition date were only $47,356.58 (see dkt. 38, Ex.C). Therefore, to the extent the advances exceeded the amount of any default (i.e.,
$91,930.10 - $47,356.58 = $44,573.52), they were unauthorized under nonbankruptcy law.
The parties have not briefed the consequences of making such an unauthorized transfer. One remedy might be for BBV, Debtor, and/or the senior lien holder to seek to unwind BBV's unauthorized payment of
$44,573.52 to the senior lien holder. In that event, presumably, Debtor would once again owe the excess $44,573.52 to the senior debt holder, and BBV's claim would be reduced by that same dollar amount. But that does not appear to have happened, so the question is what consequences follow from BBV's unuthorized payment of the senior debt.
The tentative ruling, in the absence of cited authority from either party,
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is that California law must be construed so as to treat BBV's payment of the senior debt as an unauthorized loan that attempts to replace the (lower) interest rate under the senior loan documents with the (higher) interest rate under the junior loan documents, and that this is impermissible. BBV has not cited authority that someone who makes a loan without authority to do so can charge any interest on that unauthorized loan. Therefore, the tentative ruling is that BBV cannot charge any interest prior to the effective date of any plan; although, after the effective date, it would have to bear "present value" interest pursuant to 11 U.S.C. 1325(a)(5)(B)(ii). In other words, the senior debt paid by BBV does not simply disappear (which would be a windfall to Debtor), but nor can BBV charge (higher) interest on that debt (which would be a windfall to BBV).
Bankruptcy law
All of the foregoing analysis under nonbankruptcy law may be mooted by the superseding effect of bankruptcy law. It appears that both of BBV's payments are void as a matter of bankruptcy law.
BBV's checks are dated 7/8/20 - the same day that Debtor's prior bankruptcy case was dismissed (Case No. 2:18-bk-18060-NB). This Court presumes for purposes of this discussion that the checks were issued after the dismissal (and therefore this Court will not address whether the checks violated the automatic stay in that prior case). This Court also presumes, for purposes of this discussion, that the checks were mailed on or about the same date. But the timestamps reflect that the checks were not received and/or deposited by the senior lienholder until after the 7/10/20 petition date in this current case. The checks apparently were deposited on 7/13/20 and 7/17/20 (see AmClaim, pdf pp. 6-7).
The parties have not briefed which of these dates is relevant, but the tentative ruling is that the date of deposit is the date when BBV's lien against Debtor's real property was increased, and that this constituted a "transfer" of an interest in that property and an "exercise of control" over property of the estate, in violation of the automatic stay of 11 U.S.C. 362(a)(3). Alternatively the tentative ruling is that each transfer constituted an act to obtain "possession" of property of the estate in violation of the other clause of 11
U.S.C. 362(a)(3), or an act to "create, perfect, or enforce a lien" against property of the estate in violation of 11 U.S.C. 362(a)(4). On each of these alternative grounds, BBV's advances violated the automatic stay and therefore are void ab initio. See generally 11 U.S.C. 11 U.S.C. 101(50)
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("transfer" defined); cf. In re Lee, 179 B.R. 149, 158-59 (9th Cir. BAP 1995) (date of "transfer" involving perfection of lien, under 11 U.S.C. 547), aff’d 108 F.3d 239, 241 (9th Cir. 1997); In re Hagen, 922 F.2d 742, 745 (11th Cir.
1991) (same); see also In re Schwartz, 954 F.2d 569, 571 (9th Cir. 1992) (acts in violation of automatic stay are void).
Note: The tentative ruling is that the transfers also likely constituted avoidable unauthorized postpetition transfers (11 U.S.C. 549(a)), and/or unauthorized post-petition loans (11 U.S.C. 364), which had the effect of replacing a senior encumbrance bearing a low interest rate with BBV’s encumbrance bearing a higher interest rate. But the tentative ruling is that this Court cannot make any ruling on those issues because they would require an adversary proceeding. See Rules 3007(b), 7001(1) (Fed. R. Bankr. P.).
The bottom line is that, in making payments to the holder of the senior lien, BBV violated the automatic stay and therefore both advances are void. BBV argues that there is no harm because Debtor owed the money anyway, but as a practical matter, BBV effectively increased the interest rate that Debtor must pay, which ultimately takes away from any recovery for junior creditors and jeopardizes Debtor's ability to reorganize.
Again, this Court is not ruling that Debtor will receive a windfall. If this Court adheres to the foregoing tentative ruling then the transfers from BBV to the senior lien holder were void, so presumably the senior lienholder must return the $91,930.10 to BBV and Debtor's debt to the senior lienholder will increase by that same dollar amount. That said, the senior lienholder has not been made a party to these proceedings, and Debtor has not commenced any proceeding to compel turnover by the senior lienholder (see 11 U.S.C.
542; Rule 7001(1), Fed. R. Bankr. P.). In addition, if BBV's entire $91,930.10 transfers were to be unwound then Debtor might owe additional interest, late charges, and other charges to the senior lienholder, and there might be other consequences.
Accordingly, although the tentative ruling is that BBV's $91,930.10 in advances were void (because, by increasing BBV's lien, they violated the automatic stay), the tentative ruling is that it would be premature to disallow BBV's claim for those funds at this time. Rather, the tentative ruling is to direct Debtor and BBV to meet and confer, and for both of them to communicate with the holder of the senior lien, to attempt to resolve this matter.
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Foreclosure and Bankruptcy Attorneys Fees and Costs
Foreclosure fees, costs & interest thereon
The tentative ruling is to overrule Debtor’s objection to BBV’s foreclosure fees, costs and interest because BBV’s response cites the applicable loan provision that purportedly entitles it to collect these fees/costs (dkt. 40, p.8:1-9) and Debtor’s reply does not renew any challenges to these items.
Reasonableness of attorneys’ fees & costs
The tentative ruling is to overrule the objection as to the reasonableness of the amounts charged because BBV’s opposition papers attach time records (dkt. 40, Ex.2, pdf pp. 30-40 & dkt. 41), which appear to provide adequate support for the reasonableness of its fees.
Rule 3002.1(c) (Fed. R. Bankr. P.)
First, the tentative ruling is that it is appropriate for this Court to reach the merits of this issue because although Debtor raised this issue for the first time in her reply papers (a) it appears to be in response to new information provided in BBV’s opposition and (b) there is no prejudice to BBV because it filed the unauthorized sur-reply (dkt. 43) responding to these arguments.
Second, on the merits, the tentative ruling is that Debtor appears to be correct that BBV did not comply with Rule 3002.1(c) by filing timely notices of postpetition mortgage fees, expenses and charges in the Prior Case.
Although BBV points out (dkt. 43) that any noncompliance was in the Prior Case, the tentative ruling is that for the following reasons this issue is properly raised in this current case.
The tentative ruling is that the burden is on BBV to show why charges that it was supposed to have noticed in the prior case should survive and be chargeable in this case. In addition, if necessary this Court could reopen the prior case and decide the issues in that case instead of in this one, but because this Court presided over the Prior Case that would appear to be form over substance, and any insistence by BBV on parties incurring the expense of reopening might be appropriately charged to BBV as part of this Court's discretion under Rule 3002.1(i) to award "appropriate relief."
All of that said, neither side has cited any authority interpreting Rule 3002.1; Debtor has not shown how she was prejudiced by BBV's nondisclosure of its charges in the Prior Case; and just as Debtor is having another bite at the apple in this current case perhaps BBV should as well - in
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other words, BBV's apparent violation of Rule 3002.1 does not appear to have caused any cognizable prejudice, and both parties did not fully live up to their obligations in the prior bankruptcy case, so the tentative ruling is that an "appropriate remedy" under Rule 3002.1(i) is probably not to reduce BBV's claim. Therefore the tentative ruling is to overrule Debtor's objection on this ground.
Interest Rate
The tentative ruling is to overrule the objection for the reasons stated in BBV’s opposition papers.
Unapplied funds from Debtor’s prior bankruptcy case
The tentative ruling is that this objection appears to be moot in view of BBV’s filing of an Amended Proof of Claim crediting Debtor for all payments made during the Prior Case.
Conclusion
The tentative ruling is not to adopt any of the foregoing tentative rulings on any final basis, and instead to direct the parties to meet and confer, and communicate with the holder of the senior lien, and meanwhile continue this matter to 10/22/20 at 8:30 a.m.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Magdalena Avila Represented By Stephen S Smyth
8:30 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
fr. 11/19/20
Docket 53
Tentative Ruling for 12/17/20:
Continue to 1/21/21 at 8:30 a.m., after discovery responses are due. See
Status Report (dkt. 83). Appearances are not required on 12/17/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/19/20:
Continue to 12/17/20 at 8:30 a.m. to address the following issues. Appearances are not required on 11/19/20.
-
Withdrawal of Counsel. On 10/16/20, Debtor's counsel filed a motion to withdraw as attorney. (dkt. 51). On 11/4/20, this Court set the motion to withdraw as attorney for hearing on 11/19/20. (dkt. 61). In her supplemental briefing, Debtor requested a continuance so that she can find a new attorney. (dkt. 68, p. 3). The tentative ruling is to continue this hearing to 12/17/20 to allow her to retain new counsel, with a deadline of 12/8/20 for Debtor's reply.
8:30 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Diana Mitra Saidian Represented By Fari B Nejadpour
Trustee(s):
Kathy A Dockery (TR) Represented By Fari B Nejadpour
8:30 AM
Docket 56
Debtor(s):
Sasha Demovsky-Kapustyan Represented By Richard T Baum
Trustee(s):
Kathy A Dockery (TR) Pro Se
8:30 AM
Docket 160
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
8:30 AM
1/28/20, 03/31/20, 5/5/20, 6/16/20, 7/14/20, 9/15/20,
11/10/20, 12/1/20, 12/8/20
Docket 1
Debtor(s):
FAME Assistance Corporation, a Represented By
Peter T Steinberg
8:30 AM
fr. 12/8/20
Docket 162
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
8:30 AM
9/1/20, 10/6/20, 11/10/20, 12/8/20
Docket 31
Debtor(s):
Catalina Sea Ranch, LLC Represented By
Michael D. Seese Esq. Richard H Golubow
8:30 AM
a 180-day bar against being a debtor in bankruptcy
Docket 9
Appearances required.
Debtor should be prepared to address the issues set forth in this Court's "Order (1) Setting Hearing On Debtor's Dismissal Motion And (2) Directing Debtor To Appear And Show Cause Why This Case Should Not Be Dismissed With A 180-day Bar Against Being A Debtor in Bankrupcty" (dkt. 12).
The tentative ruling is to dismiss this case and impose a 180-day bar against being a debtor in bankruptcy pursuant to 11 U.S.C. 109(g)(1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
8:30 AM
Debtor(s):
Gilbert Acevedo Represented By Rhonda Walker
Trustee(s):
Kathy A Dockery (TR) Pro Se
9:30 AM
COURT'S WEBSITE (www.cacb.uscourts.gov) UNDER:
Docket 0
- NONE LISTED -
11:00 AM
Docket 0
- NONE LISTED -
10:00 AM
U.S. BANK NATIONAL ASSOCIATION vs
DEBTOR
Docket 44
ZoomGov Instructions for all matters on today’s calendar: Meeting ID: 161 332 4043
Password: 041688
Meeting URL: https://cacb.zoomgov.com/j/1613324043
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Please connect at least 5 minutes before the start of your hearing, and wait with your microphone muted until your matter is called. You do not need to call Chambers for advance approval. ZoomGov appearances are free.
Time when these tentative rulings were first posted (for purposes of determining when anyone contesting the tentative ruling must notify other parties of intent to do so, per the "Procedures of Judge Bason," posted at www.cacb.uscourts.gov): see the time stamp at the bottom of this page.
Tentative Ruling for In re Young [2:20-bk-15698-NB]:
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 46).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Gerald Edward Young Represented By Erika Luna
Movant(s):
U.S Bank National Association Represented By Sean C Ferry
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
[424 Oak Street, Unit 322, Glendale, CA 91204]
PS FUNDING, INC.
vs DEBTOR
Docket 31
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Armenuhi Matevosian Represented By Dana M Douglas
Movant(s):
PS Funding, Inc. Represented By Andrew Still Eric S Pezold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
[121 Sinclair Ave. Unit 245 Glendale, CA 91206]
PS FUNDING, INC.
vs DEBTOR
Docket 32
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Armenuhi Matevosian Represented By Dana M Douglas
Movant(s):
PS Funding, Inc., master servicing Represented By
Andrew Still
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
[1349 N. Columbus Ave Unit 2 Glendale, CA 91202
PS FUNDING, INC.
vs DEBTOR
Docket 33
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Armenuhi Matevosian Represented By Dana M Douglas
Movant(s):
PS Funding, Inc. Represented By Andrew Still Eric S Pezold
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
CAPITAL ONE AUTO FINANCE
vs DEBTOR
Docket 26
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 28).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Ana Silvia Gonzalez Represented By Michael E Clark
10:00 AM
Movant(s):
Capital One Auto Finance, a division Represented By
Marjorie M Johnson
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
WELLS FARGO BANK, NA
vs DEBTOR
Docket 35
Appearances are not required.
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
10:00 AM
are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Kawne Lee-Johnson Represented By Tom A Moore
Joint Debtor(s):
William Johnson JR Represented By Tom A Moore
Movant(s):
Wells Fargo Bank, N.A., d/b/a Wells Represented By
Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
GLOBAL LENDING SERVICES LLC
vs DEBTOR
Docket 51
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 53).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Adrianne Michelle Williams Represented By Ali R Nader
Nathan A Berneman
10:00 AM
Movant(s):
Global Lending Services LLC Represented By Austin P Nagel
Trustee(s):
David M Goodrich (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 10
Appearances are not required.
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
The automatic stay does not apply
This case has been dismissed, which terminates the automatic stay.
See 11 U.S.C. 349(b)(3) & 362(c).
In the alternative and in addition, the tentative ruling is to grant relief from the automatic stay as follows.
Note regarding mootness: Judge Bason's standard tentative ruling is as follows. For three reasons the above tentative ruling that there is no stay does not moot requests for relief from whatever stay might apply. First, such alternative rulings are appropriate because (i) the very nature of tentative rulings is that this Court could be persuaded to depart from any one of them, and (ii) a final ruling on any one issue could be reversed on appeal. Second, even if there is currently no stay, that could change - e.g., if there is no stay because of dismissal of this bankruptcy case, such dismissal could be vacated and that might reimpose the stay even if there is a lack of adequate protection, or other grounds why the stay should not apply, and therefore the movant will suffer cognizable harm unless the issues are addressed now
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(Judge Bason regularly vacates dismissals based on stipulations or other good cause). Third, if the motion includes any request for relief as to past acts (annulment) or future cases (in rem relief), those things are still at issue even if there is no current automatic stay. See In re Aheong, 276 B.R. 233 (9th Cir. BAP 2002). For all of these reasons, the tentative ruling is that it is appropriate to address the following issues.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
10:00 AM
Debtor(s):
Jong Yeun Won Pro Se
Movant(s):
Toyota Lease Trust, as serviced by Represented By
Kirsten Martinez
Trustee(s):
Brad D Krasnoff (TR) Pro Se
10:00 AM
HONDA LEASE TRUST
vs DEBTOR
Docket 15
Appearances are not required.
Grant.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances
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are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Susana Rabie Represented By
Joseph L Pittera
Movant(s):
Honda Lease Trust Represented By Vincent V Frounjian
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
10:00 AM
ALLY FINANCIAL
vs DEBTOR
Docket 57
Debtor(s):
Michael Richard Simmons Represented By
D Justin Harelik
Movant(s):
Ally Financial Represented By Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
PENNYMAC LOAN SERVICES, LLC
vs DEBTOR
Docket 52
Tentative Ruling for 12/22/20:
Appearances required.
At the 11/10/20 hearing, the Court was persuaded to continue the hearing to allow the parties an opportunity to negotiate a forbearance. There is no tentative ruling, but the parties should be prepared to address the status of those negotiations.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20 (same as for 9/29/20):
Appearances required.
There is no tentative ruling, but the parties should be prepared to address (a)
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whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 54).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Bianca Marie Aranda Represented By William G Cort
Movant(s):
PennyMac Loan Services, LLC Represented By Megan E Lees Robert P Zahradka Christina J Khil Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LOGIX FEDERAL CREDIT UNION
vs DEBTOR
Docket 29
Debtor(s):
Jess Alfred D Mangubat Represented By
Hasmik Jasmine Papian
Joint Debtor(s):
Elizabeth Santos Mangubat Represented By
Hasmik Jasmine Papian
Movant(s):
Logix Federal Credit Union Represented By Karel G Rocha
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
LAKEVIEW LOAN SERVICING, LLC
vs DEBTOR
Docket 36
Tentative Ruling for 12/22/20:
Appearances required.
This matter has been continued several times, since 5/19/20. At the latest hearing, on 11/10/20, this Court was persuaded to continue the hearing again, to allow the parties an opportunity to negotiate the terms of an adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) the status of negotitations for an adequate protection order.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Appearances required. At prior hearings this Court was persuaded to
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continue this matter for a possible adequate protection order or other resolution. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 8/4/20:
Continue to 11/10/20 at 10:00 a.m., based on Movant's notice regarding forbearance (dkt.41). Appearances are not required on 8/4/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard
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on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 6/30/20 [revised to reflect new CourtCall date]:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through [8/31/20]. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
At the 5/19/20 hearing, this Court was persuaded to continue this matter for a possible adequate protection order. There is no tentative ruling, but the parties should be prepared to address (a) whether the alleged arrears have been brought current and/or (b) whether they will agree to the terms of an adequate protection order (see the debtor's response, dkt. 38).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Tentative Ruling for 5/19/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties
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who are not represented by an attorney will be able to use CourtCall for free through 6/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
(3) for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Juan Hernandez Contreras Represented By Juanita V Miller
10:00 AM
Movant(s):
Lakeview Loan Servicing, LLC Represented By
Erin M McCartney Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
TOYOTA LEASE TRUST
vs DEBTOR
Docket 110
Tentative Ruling for 12/22/20:
Appearances are not required.
Grant as set forth below.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Key documents reviewed (in addition to motion papers): Movant's notice of continued hearing (dkt. 128, 130), amended proof of service (dkt. 129)
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Continue to 12/22/20 at 10:00 a.m. to address the following issues. Appearances are not required on 12/1/20.
Reasons:
Service. The proof of service does not show service on the creditors included on the list filed pursuant to Rule 1007(d) as required by Rule 4001(a)
(1) (Fed. R. Bankr. P.).
No later than two days after this hearing, Movant is directed to file and serve a notice of the continued hearing and a proof of service reflecting service in accordance with Rule 4001(a)(1).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
10:00 AM
Debtor(s):
Olinda Esperanza Lytle Represented By Onyinye N Anyama
Movant(s):
Toyota Lease Trust as serviced by Represented By
Austin P Nagel
10:00 AM
HSBC BANK USA, N.A.
vs DEBTOR
Docket 35
Tentative Ruling for 12/22/20:
At the hearing on 7/28/20 this Court was persuaded to continue this matter for Debtor to seek forbearance. The tentative ruling is to take this motion off calendar (temporarily deny it), without prejudice to placing it back on calendar with notice to Debtors and the Chapter 13 Trustee, based on the parties' lengthy forbearance period. See dkt. 59. Appearances are not required on 12/22/20.
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's actual ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b) (1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer
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permitted.
Tentative Ruling for 7/28/20:
Grant as set forth below. Appearances are not required. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Deny the request to waive the 14-day stay provided by FRBP 4001(a)
for lack of sufficient cause shown.
Co-debtor stay
Any co-debtor stay (11 U.S.C. 1301(c)) has not been shown to have any basis for any different treatment from the stay under 11 U.S.C. 362(a), so the tentative ruling is to grant the identical relief regarding any co-debtor stay.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at
10:00 AM
www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
Debtor(s):
Santiago Corral Represented By Jaime A Cuevas Jr.
Joint Debtor(s):
Annayelli Marquina Represented By Jaime A Cuevas Jr.
Movant(s):
HSBC Bank USA, N.A., as Trustee Represented By
Jacky Wang Josephine E Salmon
Trustee(s):
Kathy A Dockery (TR) Pro Se
10:00 AM
Docket 12
Grant, subject to the following conditions. Appearances are not required.
After the hearing date this Court will prepare an order and the tentative ruling is to include the following language in that order:
The stay of 11 U.S.C. 362(a) applies subject to the following modifications and conditions:
Service and reconsideration. Any party in interest who was not timely served in accordance with FRBP 7004 (incorporated by FRBP 9014(b)) is hereby granted through 14 days after proper service to seek reconsideration, including retroactive relief (under FRBP 9023 and/or 9024). Any such person (a) may set a hearing on 14 days' notice, (b) may appear by telephone (if arrangements are made per Judge Bason's posted procedures), and (c) may present all arguments orally at the hearing (i.e., no written argument is required). If written arguments appear necessary then this court will set a briefing schedule at the hearing.
Reasons. (a) It appears appropriate to impose the automatic stay, and to impose it as to all persons rather than just as to selected persons, because one purpose of the automatic stay is to preventing a "race to collect" that could unfairly advantage some creditors at the expense of others. (b) To prevent possible abuse, this Court provides the foregoing simple process for reconsideration.
Very limited ruling. This Court's tentative ruling to grant the foregoing relief is solely for purposes of this motion, and is not intended to have any binding effect with respect to any future assertions by any party in interest regarding the existence or lack of existence of good faith in any other context.
10:00 AM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Alexis Solis Represented By
David Samuel Shevitz
Joint Debtor(s):
Kathy Tovar Solis Represented By
David Samuel Shevitz
Movant(s):
Alexis Solis Represented By
David Samuel Shevitz
Kathy Tovar Solis Represented By
David Samuel Shevitz David Samuel Shevitz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 225
Appearances are not required.
Approve the Trustee's final report and allow the Trustee $75.50 in fees and
$9.55 in expenses, for a total award of $85.05.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Antoinette Elisa Galvan Represented By Michael E Clark
Trustee(s):
Peter J Mastan (TR) Represented By Christopher Celentino Peter W Bowie Ashleigh A Danker
11:00 AM
11:00 AM
and payment of fees and reimbursement of expenses [Dinsmore & Shohl LLP, Attorneys for Ch. 7 Trustee]
Docket 223
Appearances are not required.
Approve the Movant's application and allow $113,951.00 in fees and
$8,945.15 in expenses for a total award of $122,896.15, and authorize payment out of available funds, currently estimated to be $5,756.25 in fees and $451.87 in expenses, for a total distribution of $6,208.12.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Antoinette Elisa Galvan Represented By Michael E Clark
Trustee(s):
Peter J Mastan (TR) Represented By Christopher Celentino
11:00 AM
Peter W Bowie Ashleigh A Danker
11:00 AM
Adv#: 2:20-01644 McLees v. Almendariz
Docket 1
Continue as set forth below. Appearances are not required on 12/22/20.
This Court has reviewed the parties' joint status report (adv.dkt. 22) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (dkt. 22).
Mediation
At a hearing on 12/1/20, this Court set a deadline of 12/22/20 for the parties to lodge a proposed order assigning this matter to mediation.
Deadlines
This adversary proceeding has been pending since 10/6/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 6/1/21 deadline.
11:00 AM
Discovery cutoff (for completion of discovery): 6/15/21. Expert(s) - deadline for reports: 6/22/21
Expert(s) - discovery cutoff (if different from above): 6/29/21 Dispositive motions to be heard no later than: 8/17/21
Joint Status Report: 2/16/21
Continued status conference: 3/2/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers, including direct
testimony by declaration unless excused: TBD Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Jose Luis Almendariz Represented By
Glenn Ward Calsada
Defendant(s):
Jose Luis Almendariz Pro Se
Plaintiff(s):
Brian McLees Represented By Dawn M Coulson
11:00 AM
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Docket 300
- NONE LISTED -
Debtor(s):
Zeta Graff Represented By
Damion Robinson
Trustee(s):
Sam S Leslie (TR) Represented By Elissa Miller
11:00 AM
Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20, 5/5/20, 9/15/20
Docket 1
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
David R Haberbush Vanessa M Haberbush
Trustee(s):
Timothy J. Yoo Pro Se
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Adv#: 2:20-01149 The SAS Creditor Trust v. L.A. Paint and Body Works, Inc. a California
of Pan Injuctions; and 3) Turnover of Property of the Estate [11 U.S.C. Section 542]
fr. 9/15/20, 11/10/20
Docket 1
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
L.A. Paint and Body Works, Inc. a Pro Se
Plaintiff(s):
The SAS Creditor Trust Represented By Monserrat Morales
11:00 AM
Adv#: 2:19-01232 Steyn v. Karl S. Reinecker, An Accountancy Corporation et a
Ownership and Equity Protection Act; 3. Unfair Practices Act Under California Civil Code Section 17200; 4. Breach of Fiduciary Duty; and 5. Declaratory Relief fr. 9/24/19, 11/5/19, 1/28/20, 3/10/20, 9/15/20
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
This Court has reviewed the parties' joint status report (dkt. 34) and the other filed documents and records in this adversary proceeding.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties have stated their positions (see adv.dkt. 14 & 19, p.4, para.
F) and this Court has not yet ruled on these issues.
Mediation
The tentative ruling is to set a deadline of 1/5/21 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
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This adversary proceeding has been pending since 7/22/19. Joinder of parties/amendment of pleadings: N/A
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 5/18/21
Continued status conference: 6/1/21 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: N/A Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 9/15/20:
Continue as set forth below. Appearances are not required.
This Court has reviewed the parties' joint status report (dkt. 32) and the other filed documents and records in this adversary proceeding.
Current issues
The tentative ruling is that Defendant is correct that Plaintiff's request for leave to file a second amended complaint must be made by filing and serving a noticed motion on interested parties, presumably including all
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parties who are sought to be joined and all extant parties. See Rule 7015 (Fed. R. Bankr. P.) (amendment of pleadings) and Rule 9013 (Fed. R. Bankr. P.) (requests for order must be by motion unless otherwise authorized by rules).
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties have stated their positions (see adv.dkt. 14 & 19, p.4, para.
F) and this Court has not yet ruled on these issues.
Mediation [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 7/22/19. Joinder of parties/amendment of pleadings: N/A
Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 12/8/20.
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: N/A
Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter
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by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Defendant(s):
Karl S. Reinecker, An Accountancy Represented By
Lewis R Landau
Marquee Funding Group, Inc. Represented By Lewis R Landau
DOES 1-10 Pro Se
Plaintiff(s):
Andrea Pompelli Steyn Represented By Benjamin Nachimson
Trustee(s):
Howard M Ehrenberg (TR) Pro Se
11:00 AM
Adv#: 2:19-01465 Ortega v. Peterson-Earhart
Docket 1
Tentative Ruling for 12/22/20:
Appearances are not required. The tentative ruling is to dismiss this adversary proceeding for lack of prosecution.
Proposed order: Defendant/Debtor is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Current issues
Lack of prosecution of this proceeding
This Court's tentative ruling for 9/15/20 noted the untimeliness of the parties' joint status report and cautioned the parties that failure to timely file status reports in future may result in adverse consequences. Notwithstanding such admonishment, Defendant/Debtor alleges that Plaintiff did not respond to her requests to prepare and timely file a joint status report by the 12/8/20 deadline this Court previously set (see adv. dkt. 17, p.1) and as of the preparation of this tentative ruling Plaintiff has not filed a unilateral status report.
Additionally, as Defendant/Debtor highlights, this Court's tentative ruling for 9/15/20 directed Plaintiff to lodge a proposed scheduling order within 7 days of that hearing, but as of the preparation of this tentative ruling Plaintiff has not complied. Id., p.4, para. "(G)".
Additionally, this Court's discovery cutoff deadline has passed, neither party has filed any dispositive motions concurrent with this status conference, and Defendant/Debtor states that her counsel has had zero communication
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from Plaintiff's counsel since the last status conference on 9/15/20. Id., p.4, para. "(G)".
For the foregoing reasons, the tentative ruling is to dismiss this adversary proceeding under LBR 7016-1(g) based on Plaintiff's failure to prosecute.
In determining whether to dismiss, this Court must consider five factors: (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the party who has litigated diligently; (4) the public policy favoring the disposition of cases on their merits; and (5) the availability of less drastic sanctions. In re Eisen, 31 F.3d 1447, 1451 (9th Cir. 1994). The tentative ruling is that, on this record, these factors weigh in favor of dismissal.
As to the first factor (the public's interest in expeditious resolution of litigation), the tentative ruling is that this factor weighs in favor of dismissal because Plaintiff has repeatedly failed to comply with this Court's orders and filing deadlines, does not appear to have propounded any discovery, and has not responded to Defendant/Debtor's communications since the last status conference. The tentative ruling is that such delay is unreasonable and without excuse.
As to the second factor (the bankruptcy court's need to manage its docket), the tentative ruling is that this factor weighs in favor of dismissal because Plaintiff appears to have willfully failed to prosecute this proceeding and this Court has already expended limited court time and resources attempting to push this proceeding forward.
As to the third factor (the risk of prejudice to defendants), the tentative ruling is that this factor weighs in favor of dismissal because Defendant/Debtor (a) has had to incur unnecessary legal expenses as a result of Plaintiff's failure to respond and diligently prosecute this proceeding and (b) would incur even greater expenses either defending herself at trial despite Plaintiff's failure to propound any discovery prior to this Court's discovery deadlines or, if Plaintiff sought to reopen discovery, addressing the issue of whether discovery should be reopened at this late stage.
As to the fourth factor (the policy favoring disposition of cases on their merits), the tentative ruling is that Plaintiff's failure to take necessary steps to ready this matter for trial and the resulting prejudice that has had on Defendant/Debtor outweighs the policies favoring disposition of this proceeding on the merits.
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As to the fifth factor (the availability of less drastic sanctions), the
tentative ruling is that Plaintiff has already been cautioned that failure to comply with this Court's orders and deadlines may result in adverse consequences and that did not deter Plaintiff from failing to lodge a scheduling order, file a status report in advance of this status conference, or respond to Defendant/Debtor's attempts to communicate. Plaintiff's lack of participation deprives this Court of any ability to consider less drastic sanctions, such as deeming certain evidentiary issues admitted or awarding fees to Defendant/Debtor to compensate for any added burden caused by Plaintiff's non-compliance with deadlines etc. Accordingly, the tentative ruling is that as a practical matter less drastic remedies are not available, and dismissal is warranted.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv.dkt. 16).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 10/30/20 Discovery cutoff (for completion of discovery): 11/27/20 Expert(s) - deadline for reports: n/a
Expert(s) - discovery cutoff (if different from above): n/a Dispositive motions to be heard no later than: 12/22/20 Joint Status Report: TBD
Continued status conference: TBD
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Lodge Joint Proposed Pre-Trial Order: TBD Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to
chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 9/15/20:
Continue, with interim deadlines, as set forth below. Appearances are not required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 9/30/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
Current issues
Untimely status report
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At the last status conference, this Court directed the parties to submit a joint status report by 9/1/20. Accordingly, the parties' joint status report filed on 9/3/20 is untimely. The parties are cautioned that failure to comply with this Court's filing deadlines in future may result in adverse consequences.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (adv.dkt. 16).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 11/5/19. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 10/30/20 Discovery cutoff (for completion of discovery): 11/27/20 Expert(s) - deadline for reports: n/a
Expert(s) - discovery cutoff (if different from above): n/a Dispositive motions to be heard no later than: 12/22/20 Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 11:00 a.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: TBD
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Michelle Lee Peterson-Earhart Represented By Daniel King
Defendant(s):
Michelle Lee Peterson-Earhart Represented By David Brian Lally
Plaintiff(s):
Fernando Ortega Represented By Aldo A Flores
Trustee(s):
Rosendo Gonzalez (TR) Pro Se
11:00 AM
Adv#: 2:20-01642 Roughan & Associates at Linc, Inc. v. Perlman
fr. 12/8/20
Docket 5
Debtor(s):
Deborah J. Perlman Represented By Michael Jay Berger
Defendant(s):
Deborah J. Perlman Represented By Michael Jay Berger
Plaintiff(s):
Roughan & Associates at Linc, Inc. Represented By
David M Almaraz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
Adv#: 2:20-01642 Roughan & Associates at Linc, Inc. v. Perlman
fr. 12/8/20
Docket 1
Debtor(s):
Deborah J. Perlman Represented By Michael Jay Berger
Defendant(s):
Deborah J. Perlman Pro Se
Plaintiff(s):
Roughan & Associates at Linc, Inc. Represented By
David M Almaraz
Trustee(s):
Kathy A Dockery (TR) Pro Se
11:00 AM
fr. 10/7/20, 12/08/20
Docket 9
Tentative Ruling for 12/22/20:
Appearances required.
Due to an internal error by this Court, an incorrect telephone number was provided for appearances at the hearing on 12/8/20, and Debtor was unable to appear, so this Court issued an order (dkt. 20) continuing this matter to this date. There is no tentative ruling, but this Court has already provided the information required by statute (11 U.S.C. 524) and has made partial conclusions of law on 10/7/20, and the parties are directed to address whether, based on the law and the facts, this Court should or should not approve the proposed reaffirmation agreement.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/8/20:
[Intentionally omitted.]
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Debtor(s):
Pier St. Cyr Pro Se
Trustee(s):
Heide Kurtz (TR) Pro Se
1:00 PM
Docket 22
Appearances required by counsel for the debtor and by the debtor(s) themselves.
Current issues
First-day motions
This Court has reviewed Debtor's status reports. See dkt. 36, 37. The tentative ruling is to waive the requirement for Debtor to file any cash collateral and/or budget motion in view of Debtor's representation that it is not operating. Dkt. 36, p.4, para. "(1)" & "(2)".
Application to employ the Law Offices of Michael J. Berger (dkt. 17, "Application"), supplemental declarations of Michael Berger, Ernesto Arellano and Jon Udoff (dkt. 38)
The supplemental declarations filed in support of the Application state that a third-party funder, Mr. Jon Udoff, contributed $15,000 towards Mr.
Berger's retainer fee as a gift to the Debtor. Dkt. 38, p.4:13-15.
The contribution from Mr. Udoff raises certain ethical issues because a third party who funds a retainer for a debtor (a "Funder") may have a variety of motivations for providing the funding, including not just a desire to protect prior equity investments or loans to Debtor, but also, for example, being the recipient of an avoidable preference, or having alter ego liability, or otherwise having interests that are adverse to (or at least not fully aligned with) the bankruptcy estate or creditors. For these reasons, although payment of a retainer by a Funder is not outright prohibited, it is fraught with ethical concerns.
The tentative ruling is to set a deadline of 1/5/21 for supplemental declaration(s) addressing the following issues:
Connections. What are all of the connections between the Funder, on the one hand, and Debtor, Debtor's proposed counsel, and any of the other types of persons listed in FRBP 2014, on the other hand -- e.g.,
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have there been any economic or business or personal connections between the Funder and Debtor, beyond the fact of being the managing member of an affiliate, or between the Funder and proposed counsel, or any creditor or other party in interest, or their respective attorneys or accountants? These questions may be answered, if appropriate, by referring to specific disclosures already on file, e.g., the bankruptcy schedules.
Informed consent of Funder. Has the Funder been advised regarding actual and potential conflicts of interest, and that the sole attorney- client relationship and duty of loyalty is with Debtor, not the Funder? Who provided such advice: independent counsel, or Debtor's proposed counsel (and if the latter, was each Funder given the opportunity to obtain independent counsel)? Has the Funder given informed consent? Are these things in writing?
Informed consent of debtor. Has the debtor likewise been fully advised and given informed consent? Who provided such advice? Are these things in writing?
Other considerations. Has proposed counsel demonstrated to the Court the absence of an actual or potential conflict, a lack of disinterestedness, or any other basis for disqualification? See In re Kelton Motors, Inc., 116 B.R. 208, 219 (Bankr. C.D. Cal. 1990); In re Park-Helena Corp., 63 F.3d 877 (9th Cir. 1995).
November Monthly Operating Report ("MOR")
As of the preparation of this tentative ruling Debtor has not filed an MOR for November. Why not?
Small business designation
Debtor has elected to proceed under Subchapter V of chapter 11, and has filed a small business status report. But in the general status report (dkt.36), p.12, Debtor has checked the box stating that Debtor is not a small business debtor. Has Debtor made other incorrect statements in filling out the status reports?
Deadlines/dates. This case was filed on 11/16/20.
Bar date: 1/25/21 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.12).
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Procedures order: dkt.24 (timely served, dkt. 35)
Plan/Disclosure Statement*: file by 2/15/21 using the forms required by Judge Bason (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Note: Although Subchapter V contemplates only a Plan, not a Disclosure Statement, the required form Plan has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so Judge Bason requires that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b).
Continued status conference: 1/26/21 at 1:00 p.m., brief status report due 1/12/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
Residence Group, Inc. Represented By Michael Jay Berger
Trustee(s):
Moriah Douglas Flahaut (TR) Pro Se
1:00 PM
6/30/20, 7/28/20, 9/1/20, 11/3/20, 11/10/20
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
Current issues
Post-confirmation progress
Debtor's status report notes that the Honolulu Terrace property is actively listed for sale and requests a continuance to late January 2021 or early February 2021 to allow the broker an opportunity to lower the listing price to generate interest in the property. Dkt. 203, p. 3. The tentative ruling is to continue the status conference to 1/26/21 at 1:00 p.m.
Discharge of Subchapter V Trustee
The Trustee's report of no distribution (dkt. 204) requests that he be discharged from any further duties as trustee. The tentative ruling is to grant that request.
Proposed order: The Trustee is directed to lodge a proposed order via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates.
This case was filed on 8/30/19, and Debtors' plan was confirmed on 9/4/20 (dkt. 178). This status conference will be continued to 1/26/21 at 1:00 p.m., subject to possibly being taken off calendar if the sale of the Honolulu Terrace property has closed and there are no issues to address.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Alex Christopher Padilla Represented By
Eric Bensamochan
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Adv#: 2:20-01641 Campos v. Kennedy
Docket 9
Please see the tentative ruling for the adversary status conference (Calendar No. 3.1, 12/22/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey Dennette A Mulvaney
Defendant(s):
John Martin Kennedy Represented By Sandford L. Frey
Movant(s):
John Martin Kennedy Represented By Sandford L. Frey
Plaintiff(s):
Yunuen Campos Represented By Lauren A Dean
1:00 PM
Adv#: 2:20-01641 Campos v. Kennedy
fr. 12/8/20
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
Current issues
Defendant/Debtor's motion to dismiss first amended complaint ("FAC") (adv. dkt. 9, 10 "MTD"), Plaintiff's opposition (adv. dkt. 12), Defendant/Debtor's reply (adv. dkt. 13)
The tentative ruling is to stay this adversary proceeding pending resolution of Plaintiff's appeal of this Court's order that Defendant/Debtor can assume the mediation Term Sheet settling the parties' disputes. Further proceedings at this time appear to be a pointless waste of time and money, because until it is known whether the Term Sheet is binding it cannot be known whether the nondischargeable dollar amount will be what was determined in Debtor's prior bankruptcy case or the reduced amount provided in the Term Sheet.
In addition, the tentative ruling is to take further status conferences in this adversary proceeding off calendar sine die, subject to being placed back on calendar at any future status conference in the main (bankruptcy) case.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority [Intentionally omitted]
1:00 PM
Mediation [Intentionally omitted: it appears that mediation may be unproductive at this time.]
Deadlines
This adversary proceeding has been pending since 10/5/20. Joint Status Report: n/a
Continued status conference: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/8/20:
Continue to 12/22/20 at 1:00 p.m., concurrent with the hearing on Defendant/Debtor's motion to dismiss (adv. dkt. 9). Appearances are not required.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
1:00 PM
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
Defendant(s):
John Martin Kennedy Pro Se
Plaintiff(s):
Yunuen Campos Represented By Lauren A Dean
1:00 PM
fr. 12/08/20
Docket 203
Please see the tentative ruling for the status conference (Calendar No. 5, 12/22/20 at 1:00 p.m.).
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey Dennette A Mulvaney
Movant(s):
Leech Tishman Fuscaldo & Lampl, Represented By
Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
Current issues
First interim fee application of Leesh Tishman Fuscaldo & Lampl, Inc. ("Applicant") (dkt. 203, 207, 208, "Fee Application"), Ms. Campos' opposition (dkt. 218), Applicant's reply (dkt. 222)
Ms. Campos has litigated a large number of issues in this case. The tentative ruling is that Debtor was justified in incurring the requested attorney fees in response.
The tentative ruling is to overrule Ms. Campos' objections and allow the fees except as follows, for the reasons stated herein and in Applicant's papers (including that Applicant has already voluntarily reduced its fee request by 15.5 hours). This tentative ruling does not require appearances at this hearing in an effort to reduce the amount of time and funds that are being expended.
Task/comments Requested Reduction
-7/27/20 Revise ... stmt of disinterestedness 1.0@$540/hr 0.5
($270.00)
-Revisions to stmt of disinterestedness required by Counsel's noncompliance with Judge Bason's posted Procedures
-9/8/20 ...format supplemental declaration 0.1@$125/hr 0.1
($12.50)
-Formatting is generally secretarial
-9/9/20 ... format ... reply ... file via CM/ECF 2.0@$125/hr 0.2
($25.00)
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and save NEF to file
-Quoted tasks are generally secretarial
-9/11/20 Download... form declaration ... 2.10@$125/hr 0.3
($37.50)
and file CM/ECF
-Quoted tasks are generally secretarial
Total reduction: 1.1
($345.00)
Total request: $192,786.50 fees & $2,833.07 costs
Total allowed: $192,441.50 (after $345.00 reduction) plus $2,833.07 costs, for a total interim award of $195,274.57.
The tenative ruling is also to allow Applicant to draw down on funds in the IOLTA account, but only up to the amount of funds earmarked for payment of professional fees - i.e., preserving Debtor's $10,000/month deposits as adequate protection for the benefit of creditors.
Proposed order: Applicant is directed to lodge a proposed order via LOU within 7 days after the hearing date and attach a copy of this tentative ruling, thereby adopting it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 6/30/20.
Bar date: 10/2/20 (dkt. 39) (timely served, dkt. 52)
Procedures order: dkt.4 (timely served, dkt.18).
Plan/Disclosure Statement*: file by 1/19/21 either using the forms generally required by Judge Bason or, at Debtor's election, using Debtor's own form(s) of Plan/Disclosure Statement (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/26/21 at 1:00 p.m., concurrent with other matters. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
John Martin Kennedy Represented By Sandford L. Frey
1:00 PM
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
Current issues
The issues raised in the tentative ruling for 11/10/20 (reproduced below) have been adequately addressed. This Court is not aware of any remaining issues that would warrant a status conference at this time.
Deadlines/dates. This case was filed, as a Subchapter V case, on 10/19/20.
Bar date: 12/28/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.9).
Procedures order: dkt.4 (timely served, dkt.6).
Plan/Disclosure Statement*: File by 1/19/21 using the forms required by Judge Bason or, alternatively, Debtor's own forms (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Note: Although Subchapter V contemplates only a Plan, not a Disclosure Statement, the required form Plan has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so if the form Plan is used then Judge Bason requires that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b).
Continued status conference: 1/26/21 at 1:00 p.m. No written status report is required.
*Warning: special procedures apply (see order setting initial status conference).
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/10/20:
Appearances required by counsel for the debtor and by Debtor's principal, Wayne Tsang.
Current issues
This Court has reviewed Debtor's status reports (dkt.12, 13) and the other filed documents and records in this case.
Executory contract(s)?
Debtor reports (dkt.12, p.2) that its "sole asset in an income producing contractual interest" and this bankruptcy case was precipitated by arbitration of a contract dispute and "lack of information/income from main asset." This implies that Debtor is a party to a contract that might be executory (although that is not necessarily so). Debtor also reports (dkt.12, p.7) that it has no executory contracts: is that accurate?
Employment application (dkt.16)
In connection with the pending employment application of proposed bankruptcy counsel (dkt.16), Debtor's principal, Mr. Tsang, declares that Alkterra Capital "paid the pre-petition retainer of $76,717.00" to proposed bankruptcy counsel "as a gift" for which it will not seek reimbursement, and that "[o]ther than shared leadership/ownership, Alkterra Capital has no connections to, or claims against, the Debtor." Dkt.16, p.11:10-13 There is no disclosure about the business form of Alkterra Capital.
Supposing that Alkterra Capital is a corporation or similar type of business subject to the laws of California or similar laws, this Court is
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concerned that investors in Alkterra Capital could in future seek to avoid its gift as a constructively fraudulent transfer, or bring similar claims. That possibility could be used as leverage to influence Mr. Tsang's managment of this bankruptcy estate, or otherwise cause potential conflicts of interest.
Have any investors in Alkterra Capital been fully informed as to its gift to Debtor, and have they provided their written consent, and/or whatever else might be required (e.g., a vote)? Does the gift implicate bankruptcy-related concerns in any other ways?
Because it might take time to obtain any responses/authorizations, the tentative ruling is to set the employment application for hearing fairly far in the future, concurrent with the continued status conference (see below). The tentative ruling is not to alter the current deadline for any response to the employment application (14 days after it was filed/served), but to set a supplemental deadline of 12/8/20 for Debtor to file a declaration or other papers addressing this Court's concerns set forth above, and a deadline of 12/15/20 for the United States Trustee to file any response it may elect to file on that issue.
Deadlines/dates. This case was filed, as a Subchapter V case, on 10/19/20.
Bar date: 12/28/20 per General Order 20-01 (70 days after petition date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt.9)
Procedures order: dkt.4 (timely served, dkt.6).
Plan/Disclosure Statement*: TBD
Note: Although Subchapter V contemplates only a Plan, not a Disclosure Statement, the required form Plan has not yet been updated to include the disclosures required by Subchapter V (11 U.S.C. 1190), so Judge Bason requires that the form Disclosure Statement be completed as well. 11 U.S.C. 1181(b). Alternatively, as stated in the Procedures Order, Debtor can request to be excused from using the forms.
*Warning: special procedures apply (see order setting initial status conference).
Continued status conference: 12/22/20 at 1:00 p.m. No written status report required.
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If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Joshuaville, LLC Represented By Leslie A Cohen
Trustee(s):
Moriah Douglas Flahaut (TR) Pro Se
1:00 PM
Docket 141
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the Status Conference (Calendar No. 10, 12/22/20 at 1:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Tea Station Investment Inc. Represented By Leslie A Cohen Leslie A Cohen
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
BAODI ZHOU
vs DEBTOR
Docket 50
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the Status Conference (Calendar No. 10, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the Status Conference (Calendar No. 30, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
1:00 PM
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
fr. 9/15/20, 9/29/20, 10/27/20
Docket 49
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the Status Conference (Calendar No. 10, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the Status Conference (Calendar No. 30, 10/27/20 at 1:00 p.m.).
Tentative Ruling for 9/29/20:
Please see the tentative ruling for the Status Conference (Calendar No. 21, 9/29/20 at 1:00 p.m.).
Tentative Ruling for 9/15/20:
Please see the tentative ruling for the Status Conference (Calendar No. 4, 9/15/20 at 2:00 p.m.).
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Baodi Zhou Represented By
David Grimes
1:00 PM
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
Docket 15
Tentative Ruling for 12/22/20:
Appearances required.
Current issues
Motions of Baodi Zhou for relief from automatic stay or dismissal of the Investment case (dkt.49, 50, 59); Debtors' opposition (dkt.62), reply (dkt.68)
At the 10/27/20 hearing, appearances were not required and Debtors' counsel did not appear, but Creditor Baodi Zhaou inquired as to whether section 362(a) prevented Creditor from pursuing Debtors' principal. This Court continued the hearing and directed creditor to serve written notice on Debtors of the continuance, no later than 10/30/20. As of the date of this tentative ruling, the docket does not reflect any such notice. There is no tentative ruling, but the parties should be prepared to address any outstanding issues.
Motion to Approve Compromise of Real Property Lease Claims with JSL Gardena I, LLC and Yu-Liang Huang Pursuant to Federal Rule of Bankruptcy Procedure 9019 (dkt. 141), no opposition is on file.
Grant.
Proposed order: Debtor is directed to lodge a proposed order on the foregoing motion via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
Debtors' proposed Plan (dkt.137) and Status Report requesting that this Court set the confirmation hearing and related procedures (dkt.145)
Set a hearing concurrent with the continued status conference (see below) on whether to confirm the proposed Plan (11 U.S.C. 1191), including whether the required disclosures in the Plan are adequate (11 U.S.C.
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1190(1)). The tentative ruling is to direct Debtor, no later than 12/28/20, to lodge a proposed order setting deadlines for service of the voting package, returning ballots, filing any objections, etc., substantially in the form posted on Judge Bason's portion of this Court's website (www.cacb.uscourts.gov), with appropriate adjustments to account for the fact that there is no separate disclosure statement.
Application to employ special counsel (dkt.146) (period for any objections has not expired)
This Application is not on for hearing today, but in connection with today's Status Conference this Court notes that proposed counsel proposes to have Debtors waive conflicts (dkt.146, Ex.A, p.2) but this Court's understanding of applicable law is that a debtor generally may not waive conflicts on behalf of creditors or the bankruptcy estate. At the Status Conference, all parties in interest are invited to address, on a preliminary basis, whether it is appropriate to establish any special procedures to address that issue, such as setting a deadline for any supplement to the Application addressing that issue.
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 to chapter 11 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with affiliated debtors (dkt.64).
Bar date: (i) Investment 9/9/20 (dkt. 40; timely served, dkt. 43); Affiliated Debtors 11/10/20.
Procedures order: dkt.18 (timely served, dkt.20) (also timely served in each jointly administered case).
Plan/Disclosure Statement (dkt. 137)*: Set the proposed Plan for hearing concurrent with the continued Status Conference (see above and below).
Continued status conference: 2/9/21 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances
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required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Continue as set forth below. Appearances are not required on 10/27/20.
Current issues
Motions of Baodi Zhou for relief from automatic stay or dismissal of the Investment case (dkt.49, 50, 59); Debtor's opposition (dkt.62), reply (dkt.68)
This Court's ruling on 9/29/20 was temporarily to deny this motion, but to continue the matter to re-assess what progress has or has not been made in this case. The tentative ruling is that Debtor appears to be making sufficient progress - rejecting some leases and retaining a broker to attempt to maximize the value of the remaining assets and businesses - to warrant a further continuance. The tentative ruling is to set a continued hearing contemporaneous with the continued status conference set forth below.
Deadlines/dates. This case was filed on 5/4/20 and converted from chapter 7 to chapter 11 on 7/1/20 (dkt.17). The petition was amended to elect Subchapter V on 7/14/20 (dkt.27). On 9/4/20 this Court ordered joint administration with affiliated debtors (dkt.64).
Bar date: (i) Investment 9/9/20 (dkt. 40; timely served, dkt. 43); Affiliated Debtors 11/10/20.
Procedures order: dkt.18 (timely served, dkt.20) (also timely served in each jointly administered case).
Plan/Disclosure Statement*: vacate the existing deadline of 11/30/20 in view of Debtors' pursuit of a sale of the business.
Continued status conference: 12/22/20 at 1:00 p.m., brief status
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report due 12/8/20.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Tea Station Investment Inc. Represented By Leslie A Cohen
Movant(s):
Tea Station Investment Inc. Represented By Leslie A Cohen Leslie A Cohen
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
1:00 PM
Docket 390
Please see the tentative ruling for the status conference (Calendar No. 15, 12/22/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Liat Talasazan Represented By Giovanni Orantes Giovanni Orantes Giovanni Orantes Giovanni Orantes Luis A Solorzano Luis A Solorzano Luis A Solorzano Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 402
Please see the tentative ruling for the status conference (Calendar No. 15, 12/22/20 at 1:00 p.m.).
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Liat Talasazan Represented By Giovanni Orantes Giovanni Orantes Giovanni Orantes Giovanni Orantes Luis A Solorzano Luis A Solorzano Luis A Solorzano Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
fr. 9/15/20, 9/29/20, 10/27/20, 12/1/20
Docket 280
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 12/22/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Caroline Renee Djang (TR) Pro Se
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
fr. 10/27/20, 12/1/20
Docket 318
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 15, 12/22/20 at 1:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Movant(s):
Caroline Renee Djang (TR) Pro Se
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
4/7/20, 5/12/20, 5/19/20, 6/2/20, 6/16/20, 7/28/20,
8/18/20, 9/1/20, 9/15/20, 9/29/20, 10/27/20, 12/1/20
Docket 49
Tentative Ruling for 12/22/20:
Appearances required.
Current issues
Debtor's finance motion (dkt. 390, "Finance Motion") & supporting declarations (dkt. 391, 392, 394, 396, 397, 398, 399, 401, 410), notice of hearing (dkt. 404), proof of service (dkt. 406); Celtic Bank opposition (dkt. 415); Oxygen Funding opposition (dkt. 428); Trustee's joinder (dkt. 430); Michael Tremblay opposition (dkt. 433), East West Bank opposition (dkt. 444), Debtor's reply (dkt. 445)
The tentative ruling is to deny the motion for the reasons stated in the creditors' oppositions, the Trustee's joinder, and this Court's order denying Debtor's parents' motion for a stay pending appeal. See dkt. 415, 428, 430, 433, 444, and 441 at 10:1-11:13 (pointing out lack of evidence to support contribution declarations, etc.) (as amended by dkt.442).
Debtor's latest motion to reconsider Turnover Order [dkt. 300], Eviction Order [dkt. 333] and Conversion Order [dkt. 412] (dkt. 402, "Reconsideration Motion") & Orantes decl (dkt. 403), notice of hearing (dkt. 404), proof of service (dkt. 406), Celtic Bank's opposition (dkt. 416), Trustee's joinder (dkt. 423); Michael Tremblay's joinder (dkt. 432), Debtor's reply (dkt. 445)
The tentative ruling is to deny the motion for the reasons stated in the opposition papers and this Court's order denying Debtor's parents' motion for a stay pending appeal. See dkt. 416, 423, 432, 441 (as amended by dkt.442).
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Subchapter V Trustee's motion for turnover of Laurel Property (dkt. 280), Debtor's opposition (dkt. 285), Michael Tremblay's response (dkt. 291), Interim Turnover Order (dkt. 300)
The parties are directed to update this Court on the status of the eviction and address whether any additional relief is appropriate. In addition, the tentative ruling is to continue this matter to be concurrent with the continued status conference (see below, section "(2)(a)").
Subchapter V Trustee's motion re eviction/contempt (dkt. 318, 319, the "Eviction/OSC Motion"), 319), Debtor & Orantes declarations (dkt. 320, 322), Orantes declaration (dkt. 322), Order shortenting time (dkt. 323) and POS (dkt. 326), Trustee declaration (dkt. 328), Debtor & Orantes declarations & opposition (dkt. 329, 330, 331), Trustee's declaration re compensatory sanctions (dkt. 335), order imposing compensatory sanctions (dkt. 400)
The tentative ruling is to continue this matter concurrent with the status conference (see below, section "(2)(a)").
Talasazan v. Oxygen Funding, Inc., et al (2:20-ap-01027-NB), joint status report (adv. dkt. 41)
This matter remains stayed, per this Court's oral ruling at the status conference on 9/15/20. In view of this Court's conversion of Debtor's case to chapter 7, the tentative ruling is to continue this matter to the same date and time as the contined status conference (see below, section "(2)(a)") to allow time for the chapter 7 trustee to evaluate the merits of the claims and determine how to proceed.
Proposed orders: The Trustee is directed to lodge proposed orders on items "(1)(a)" through "(1)(c)" above, and on any other disposition beyond mere continuance, via LOU within 7 days after the hearing date, subject to any changes ordered at the hearing.
See LBR 9021-1(b)(1)(B).
Deadlines/dates. This case was filed on 11/20/19, converted from chapter 13 to chapter 11 on 1/2/20, designated by Debtor as a Subchapter V case on 3/2/20 (dkt.128), and converted to chapter 7 on 12/1/20 (dkt. 412).
Continued status conference: 1/26/21 at 1:00 p.m. No written status report required.
1:00 PM
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED (see Memorialization of Tentative Rulings, dkt.208 (filed 5/19/20) and dkt.303 (filed 9/21/20). See also Order Denying Motion for Stay (dkt.441, as amended by dkt.442).]
Debtor(s):
Liat Talasazan Represented By Giovanni Orantes Luis A Solorzano
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Adv#: 2:20-01027 Talasazan v. Oxygen Funding, Inc. et al
11 U.S.C. Section 542; 3) Avoidance of Transfer Under 11 U.S.C. Section 544;
4) Avoidance of Fraudulent Transfer Under 11 U.S.C. Section 548; 5) Recovery and Preservation of Avoided Transfers Pursuant to 11 U.S.C. Sections 550(a), 551; 6) Unfair Practices under California Business & Professions Code Section 17200; and 7) Slander of Title
fr. 4/21/20, 9/15/20
Docket 1
Tentative Ruling for 12/22/20:
This matter remains stayed, per this Court's oral ruling at the status conference on 9/15/20. Please see the tentative ruling for the main case status conference (Calendar No. 15, 12/22/20 at 1:00 p.m.).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 9/15/20:
Appearances required.
This Court has reviewed the parties' joint status report (dkt. 37) and the other
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filed documents and records in this adversary proceeding.
Current issues
(a) Apparent waste of resources and/or unwillingness to prosecute This Court continues to have serious concerns why it makes any sense
for Debtor to dispute the alleged security interest of Oxygen Funding, Inc. when (i) Debtor continues to assert that all creditors will be paid 100% of their allowed claims regardless whether those claims are or are not secured by any collateral, (ii) the Bankruptcy Code includes many tools to assure that disputed security interests do not block attempted refinancings, sales, or other uses of estate property (see, e.g., 11 U.S.C. 363(f), 1129(b)(1)), and (iii) the expense of this litigation to the bankruptcy estate appears very likely to exceed any possible future benefits (but cf. dkt.282 re unauthorized funding of Debtor's counsel by non-debtor husband). At prior hearings this Court was persuaded not to take any action on the foregoing concerns, pending mediation, but the parties report (adv.dkt.37) that mediation was unsuccessful.
Conversely, assuming for the sake of discussion that for some reason would make any sense to pursue this litigation, Debtor/Plaintiff appears to be unwilling to prosecute it unless and until she can obtain a different forum.
She states, in the parties' joint status report (adv.dkt.37, p.4, para.G) that she will seek dismissal of this bankruptcy case and then pursue this litigation in State Court.
The parties are directed to address whether this Court should (i) stay this litigation indefinitely, pending the results of attempts by Debtor and the Subchapter V Trustee to sell or refinance the "Laurel" property, or confirm a chapter 11 plan, or implement other means of restructuring Debtor's finances,
dismiss this adversary proceeding for lack of prosecution if Debtor/Plaintiff does not prosecute it pursuant to the deadlines tentatively set forth below, or
establish some other deadlines or procedures regarding this matter.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
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Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined
and/or waived or forfeited (docket numbers 26, 37)
Mediation [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 2/10/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: 10/30/20 deadline. Discovery cutoff (for completion of discovery): 11/13/20.
Expert(s) - deadline for reports: 11/20/20
Expert(s) - discovery cutoff (if different from above): 11/20/20 Dispositive motions to be heard no later than: 12/22/20
Joint Status Report: 12/8/20
Continued status conference: 12/22/20 at 1:00 p.m. Lodge Joint Proposed Pre-Trial Order: TBD
Pretrial conference: TBD
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: TBD
Trial commencement: TBD
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
Liat Talasazan Represented By
1:00 PM
Giovanni Orantes Luis A Solorzano
Defendant(s):
Oxygen Funding, Inc. Represented By Vonn Christenson
Adam Landis Lomax Represented By Vonn Christenson
Plaintiff(s):
Liat Talasazan Represented By Luis A Solorzano
Giovanni Orantes
Trustee(s):
Caroline Renee Djang (TR) Pro Se
1:00 PM
Docket 57
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 11/10/20 at 1:00 p.m.).
Tentative Ruling for 10/27/20:
Please see the tentative ruling for the status conference (Calendar No. 4, 10/27/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Movant(s):
United States Trustee (LA) Represented By Dare Law
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
fr. 11/10/20
Docket 54
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 19, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 11/10/20:
Please see the tentative ruling for the status conference (Calendar No. 13, 11/10/20 at 1:00 p.m.).
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Docket 1
Tentative Ruling for 12/22/20:
Appearances required.
Current issues
United States Trustee's motion to dismiss, convert or appoint a chapter 11 trustee (dkt. 58, "MTD"), Debtor's opposition (dkt. 70), UST's reply (dkt. 71), continuing compliance order (dkt. 76)
There is no tentative ruling, but the parties should be prepared to address whether Debtor is in full compliance with all of its reporting and disclosure obligations, and has been maintaining regular communications with the Subchapter V Trustee and creditors.
Amended Disclosure Statement (dkt. 81) and Plan (dkt. 80), JPMC objection (dkt. 82), U.S. Trustee objection (dkt.88), Amended Plan (dkt.89), Amended Disclosure Statement (dkt.90)
Agreement(s)?
The parties are directed to address whether the Plan reflects agreements with creditors, and whether it includes all secured and unsecured claims that are allowed, or untimely claims that might (or might not) be allowed. See dkt.82.
Feasibility?
The good news is that Debtor appears to have corrected its reporting of recent financial history. Compare Disclosure Statement (dkt.90-2), Ex.D (summary of prepetition books & MORs), with U.S. Trustee's Objection (dkt.88), Ex.1 (summary of MORs). In addition, Debtor's historical profit & loss statements (Disclosure Statement, dkt.90-14, Attachment 8) show considerable improvement from the losses in 2018 and 2019 to a modest income in the first part of 2020. The declaration of one of Debtor's principals,
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Joel Russell (id., dkt.90-15) also appears to show good reasons to anticipate continued improvement. Debtor projects net cash flow (before debt payments) starting at $6,665.00 for 12/20 and increasing initially to
$7,706.25/mo. and eventually to over $9,000.00/mo. See Disclosure Statement, dkt.90-11, Attachment 5.
But Debtor's projected cash flows appear to be unrealistic because at present Debtor is barely breaking even, after monthly interest-only payments of $3,500/mo. to its principal secured creditor, First Home Bank (see, e.g., MOR for 11/20, dkt.86-2, p.2, and MOR for 10/20, dkt.83-5, p.2), whereas under the Plan Debtor would be paying $5,055.73/mo. to First Home Bank, plus an additional $519.61 to Chase and $916.67 to the Subchapter V Trustee or General Unsecured Creditors. See Plan (dkt.89) Ex.A, Classes 2A, 2B & 4A. Based on this apparent gap between projections and recent history, the tentative ruling is to continue the hearing on any Plan and Disclosure Statement until Debtor begins to demonstrate performance consistent with its current projections (or not).
Meanwhile, the tentative ruling is to direct Debtor's counsel not to expend time (and attorney fees) revising the Disclosure Statement to correct the issues noted below, but to be prepared to do so if directed at a future Status Conference (if Debtor's financial performance demonstrates feasibility).
Corrections to Disclosure Statement (for future reference) When and if this Court directs, Debtor must prepare a further amended
Disclosure Statement correcting formatting issues, such as blank pages (see, e.g., Disclosure Statement (dkt.90-1), Ex.C1 through C3, at PDF pp.2-4) and miniature pages. See id., Ex.E (dkt.90-3). In addition, Ex.C to the Disclosure Statement uses a single, unchanging projection of monthly net income, whereas Debtor's actual projections are much more variable (mostly projected increases). The tentative ruling is that Ex.C need not show every monthly variation, but should reflect the average projections for each of the periods in the Plan.
Again, the tentative ruling is to direct Debtor's attorneys not to correct any of the above-referenced issues unless and until Debtor demonstrates sufficient cash flow for feasibility purposes.
Deadlines/dates. This case was filed on 5/21/20.
Bar date: 7/30/20 per General Order 20-01 (70 days after petition
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date in Subchapter V cases) (DO NOT SERVE any notice: one has already been sent, see dkt. 12).
Procedures order: dkt.7 (served one day late, dkt. 14)
PlanDisclosure Statement*: See above.
Continued status conference: 1/26/21 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Truemetrics Represented By
Ryan A. Stubbe
Trustee(s):
Gregory Kent Jones (TR) Pro Se
1:00 PM
Adv#: 2:19-01464 Fargo Trucking Company Inc Post-Confirmation Commi v. OOCL(USA)
fr. 01/07/20, 01/28/20, 5/5/20, 9/15/20
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
This Court has reviewed the parties' joint status report (adv. dkt. 28), the District Court's order partially withdrawing the reference (adv. dkt. 15, Ex.1), this Bankruptcy Court's modified scheduling order (adv. dkt. 22), the District Court's minute order setting the trial and related deadlines (adv. dkt. 28, Ex.A), and the other filed papers and records of this Court.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
Matters of venue, jurisdiction, and authority have been determined and/or waived or forfeited (see adv.dkt.15).
Mediation: [Intentionally omitted]
Deadlines
This adversary proceeding has been pending since 11/5/19. The pretrial conference and hearing on motions in limine has been set in the District Court for 6/4/21 at 11:00 a.m. (see adv. dkt. 28, Ex.A, p.2) and trial has been set for 6/28/21 at 8:30 a.m. (see id.). In addition, the following
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additional deadlines apply.
Continued status conference: 3/2/21 at 1:00 p.m.
Lodge Joint Proposed Pre-Trial Order: TBD NOTE: The parties are reminded that they will need to coordinate with the District Court regarding some of the issues that will need to be included in the pretrial order, such as the format of exhibits preferred by District Court Judge Bernal, whether direct testimony will be live or via declaration, etc. The parties are directed to plan accordingly.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Fargo Trucking Company, Inc. Represented By
Vanessa M Haberbush David R Haberbush Lane K Bogard
Defendant(s):
OOCL(USA) Inc., DBA Orient Represented By Jeffrey D Cawdrey
Plaintiff(s):
Fargo Trucking Company Inc Post- Represented By
1:00 PM
Trustee(s):
David R Haberbush Vanessa M Haberbush
Timothy J. Yoo Pro Se
1:00 PM
Adv#: 2:20-01149 The SAS Creditor Trust v. L.A. Paint and Body Works, Inc. a California
of Pan Injuctions; and 3) Turnover of Property of the Estate [11 U.S.C. Section 542]
fr. 9/15/20, 11/10/20
Docket 1
Tentative Ruling for 12/22/20:
Continue to 1/26/21 at 11:00 a.m. pursuant to Plaintiff's status report (adv.dkt.16). Appearances are not required on 12/22/20.
The tentative ruling is also to set Plaintiff's Motion for Default Judgment (adv. dkt. 18) for hearing to be held contemporaneous with the continued status conference, with a deadline of 1/12/21 for Plaintiff to file a declaration with daily timesheets to support the requested attorney fees of $17,865.50.
See dkt.18, p.17:2-4 & p.17:20-23 (stating that Morales Decl. demonstrates incurrence of attorney fees), and compare id. pp.19-22 (Morales Decl. w/ no timesheets). The tentative ruling is that the declaration of Mr. McNeal provides sufficient foundation to support his opinion: "I believe the market value of the Subject Property, as is, is no less than $30,500.00." Dkt.18, p.31:26-32:8.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
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rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Schaefer Ambulance Service, Inc Represented By
Craig G Margulies Monserrat Morales
Defendant(s):
L.A. Paint and Body Works, Inc. a Pro Se
Plaintiff(s):
The SAS Creditor Trust Represented By Monserrat Morales
1:00 PM
Docket 1
Tentative Ruling for 12/22/20:
Appearances required.
Current issues
NVSI, Inc.'s motion for relief from stay (dkt. 144, "R/S Motion); oppositions (if any) to be made orally at the hearing
The tentative ruling is to grant relief from the automatic stay as follows, subject to any opposition at the hearing.
Termination
Terminate the automatic stay under 11 U.S.C. 362(d)(1) and (d)(2).
To the extent, if any, that the motion seeks to terminate the automatic stay in other past or pending bankruptcy cases, such relief is denied on the present record. See In re Ervin (Case No. 14-bk-18204-NB, docket no. 311).
Effective date of relief
Grant the request to waive the 14-day stay provided by FRBP 4001(a)
(3).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
Future of this case
If this Court is persuaded to adopt its tentative ruling and lift the automatic stay, Debtor should be prepared to address whether this Court should convert this case to a case under chapter 7, dismiss this case, or take some other action.
Deadlines/dates. This case was filed on 8/26/19.
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Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
Plan/Disclosure Statement*: N/A (12/11/20 deadline vacated at hearing on 12/1/20).
Continued status conference: 1/26/21 at 1:00 p.m. (if this case is not dismissed). No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Missing status report
This Court's tentative ruling for 10/6/20 set a deadline of 11/17/20 for Debtor to file a status report. As of the preparation of this tentative ruling, no status report is on file. Why not?
Debtor should be prepared to provide a brief update on the status of its marketing efforts and whether this Court should vacate and/or reset the 12/11/20 deadline to file a plan and disclosure statement.
Deadlines/dates. This case was filed on 8/26/19.
Bar date: 11/25/19 (dkt. 29; timely served, dkt. 31).
Procedures order: dkt. 11 (timely served, dkt. 24)
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Plan/Disclosure Statement*: file by 12/11/20 using the forms required by Judge Bason, unless excused (DO NOT SERVE yet, except on the U.S. Trustee - this Court will set a deadline and procedures at a later time).
Continued status conference: 1/26/21 at 1:00 p.m. Brief status report due 1/12/21.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
1:00 PM
NVSI INC.,
vs DEBTOR
Docket 144
Please see the tentative ruling for the status conference (Calendar No. 22, 12/22/20 at 1:00 p.m.).
Debtor(s):
9469 BEVERLY CREST LLC Represented By
John N Tedford IV George E Schulman
Movant(s):
NVSI Inc, a California corporation Represented By
Joshua L Scheer
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 06/16/20, 7/14/20, 09/01/20, 10/6/20, 11/10/20
Docket 1
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the Status Conference in the lead Bankruptcy case (Calendar No. 25, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 7/14/20:
Appearances required.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
This Court has reviewed the filed documents and records in this adversary proceeding.
Current issues
Joint status report
Plaintiffs and Debtor/Defendant were required to file a joint status report at least 14 days prior to this status conference, 6/30/20. See adv. dkt.
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4 & 6. As of the drafting of this tentative ruling, no status report has been filed. Why not?
Motion To Dismiss
In light of this Court's direction to the parties to attend mediation in section (B)(2), the tentative ruling is to continue the hearing on Debtor/Defendant's Motion to Dismiss (adv. dkt. 11) from 7/28/20 at 2:00 p.m. to the same date and time as the continued status conference set in section (B)(3) below.
Standard requirements
The following are Judge Bason's standard requirements for status conferences. (To the extent that the parties have already addressed these issues in their status report, they need not repeat their positions at the status conference.)
Venue/jurisdiction/authority
The parties are directed to address any outstanding matters of (a) venue, (b) jurisdiction, (c) this Bankruptcy Court's authority to enter final orders or judgment(s) in this proceeding and, if consent is required, whether the parties do consent, or have already expressly or impliedly consented.
See generally Stern v. Marshall, 131 S.Ct. 2594, 2608 (2011) (if litigant "believed that the Bankruptcy Court lacked the authority to decide his claim…then he should have said so – and said so promptly."); Wellness Int'l Network, Ltd. v. Sharif, 135 S.Ct. 1932 (2015) (consent must be knowing and voluntary but need not be express); In re Bellingham Ins. Agency, Inc., 702 F.3d 553 (9th Cir. 2012) (implied consent), aff’d on other grounds, 134 S. Ct. 2165 (2014); In re Pringle, 495 B.R. 447 (9th Cir. BAP 2013) (rebuttable presumption that failure to challenge authority to issue final order is intentional and indicates consent); In re Deitz, 760 F.3d 1028 (9th Cir. 2014) (authority to adjudicate nondischargeability encompasses authority to liquidate debt and enter final judgment). See generally In re AWTR Liquidation, Inc., 548 B.R. 300 (Bankr. C.D. Cal. 2016).
Mediation
Is there is any reason why this Court should not order the parties to mediation before one of the volunteer mediators (not a Bankruptcy Judge), and meanwhile set the deadlines set forth below? The tentative ruling is to
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set a deadline of 7/28/20 for the parties to lodge a proposed mediation order (the parties are directed to use the time between now and that deadline to find a mutually agreeable mediator whose schedule can accommodate the needs of this matter; and if the parties cannot even agree on a mediator they may lodge separate orders and Judge Bason will chose among them, or issue his own order).
Deadlines
This adversary proceeding has been pending since 4/13/20. Pursuant to LBR 9021-1(b)(1)(B), plaintiff is directed to lodge a proposed order via LOU within 7 days after the status conference, attaching a copy of this tentative ruling or otherwise memorializing the following.
Joinder of parties/amendment of pleadings: N/A Discovery cutoff (for completion of discovery): N/A Expert(s) - deadline for reports: N/A
Expert(s) - discovery cutoff (if different from above): N/A Dispositive motions to be heard no later than: N/A
Joint Status Report: 8/18/20.
Continued status conference: 9/1/20 at 1:00 p.m. Lodge Joint Proposed Pre-Trial Order: N/A Pretrial conference: N/A
Deliver trial exhibits to other parties and chambers (2 copies to chambers), including direct testimony by declaration unless excused: N/A (for the format of exhibits and other trial procedures, please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "Trial Practice")
Trial commencement: N/A
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Plaintiff(s):
Gilbert Martinez Represented By James A Judge Jivko Tchakarov
Ofelia Argaez de Chuc Represented By James A Judge Jivko Tchakarov
William Garcia Represented By James A Judge Jivko Tchakarov
Roberto Melendez Represented By James A Judge Jivko Tchakarov
Barbee Ann Arocho Represented By James A Judge Jivko Tchakarov
Jose Chuc Represented By
James A Judge Jivko Tchakarov
Teresa DeJesus Ramos Represented By James A Judge Jivko Tchakarov
1:00 PM
Carlos Canales Represented By James A Judge Jivko Tchakarov
Arturo Avila Represented By
James A Judge Jivko Tchakarov
Froilan Hernandez Lorenzo Represented By James A Judge Jivko Tchakarov
Levi A. Anonuevo Represented By James A Judge Jivko Tchakarov
1:00 PM
Adv#: 2:20-01098 Garcia et al v. Myllyla
fr. 7/14/20, 7/28/20, 09/01/20, 10/6/20, 11/10/20
Docket 11
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the Status Conference in the lead Bankruptcy case (Calendar No. 25, 12/22/20 at 1:00 p.m.).
Tentative Ruling for 7/28/20:
Continue to 9/1/20 at 1:00 p.m., to permit time for the parties to attend mediation as ordered at the 7/14/20 hearings. Appearances are not required on 7/28/20. If you wish to dispute the tentative ruling you must notify other parties of your intent to appear telephonically.
Pursuant to Judge Bason's COVID19 Procedures, ONLY TELEPHONIC APPEARANCES WILL BE PERMITTED until further notice. Please contact CourtCall at (888) 882-6878 to make arrangements for any telephonic appearance. There is no need to contact the Court for permission. Parties who are not represented by an attorney will be able to use CourtCall for free through 8/31/20. Attorneys will receive a 25% discount (for more information, see www.cacb.uscourts.gov, "Judges," "Bason, N.," "Telephonic Instructions").
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear telephonically without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing.
1:00 PM
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
Defendant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Movant(s):
Reijo Kustaa Myllyla Represented By Jivko Tchakarov Byron Z Moldo James A Judge
Plaintiff(s):
Gilbert Martinez Represented By James A Judge Jivko Tchakarov
Ofelia Argaez de Chuc Represented By James A Judge Jivko Tchakarov
William Garcia Represented By James A Judge Jivko Tchakarov
Roberto Melendez Represented By James A Judge Jivko Tchakarov
Barbee Ann Arocho Represented By James A Judge Jivko Tchakarov
1:00 PM
Jose Chuc Represented By
James A Judge Jivko Tchakarov
Teresa DeJesus Ramos Represented By James A Judge Jivko Tchakarov
Carlos Canales Represented By James A Judge Jivko Tchakarov
Arturo Avila Represented By
James A Judge Jivko Tchakarov
Froilan Hernandez Lorenzo Represented By James A Judge Jivko Tchakarov
Levi A. Anonuevo Represented By James A Judge Jivko Tchakarov
1:00 PM
Docket 6
Tentative Ruling for 12/22/20:
Continue as set forth below. Appearances are not required on 12/22/20.
Current issues
Stipulation to Continue Status Conference and Hearing on Motion to Dismiss (adv. dkt. 43).
The docket reflects the filing of a Notice of Lodgment (adv. dkt. 44) of an order entering the aforementioned stipulation, but this court has no record of a proposed order being uploaded. Plaintiffs are directed to lodge a proposed order entering the stipulation via LOU no later than December 23, 2020.
Deadlines/dates. This case was filed on 1/13/20.
Bar date: 5/31/20 (dkt. 27; timely served, dkt. 28).
Procedures order: dkt. 3 (timely served, dkt. 9).
Plan/Disclosure Statement*: TBD
Continued status conference: 1/26/21 at 1:00 p.m. No written status report required.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
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COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Reijo Kustaa Myllyla Represented By Byron Z Moldo
1:00 PM
Docket 5
Appearances required.
Grant, subject to any opposition at the hearing, per this Court's order shortening time (dkt. 7) and Debtor's proof of service (dkt.11).
Proposed order: Movant is directed to lodge a proposed order via LOU within 7 days after the hearing date. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
VEEJ Corp Represented By
Jeffrey S Shinbrot
2:00 PM
(iii) Thomas Polis, (iv) Lynn Chao, (v) The Law Offices of Lynn Chao to Appear and Show Cause Why This Court Should Not Find Them in Contempt and Impose Sanctions fr. 8/19/20, 9/17/20, 11/3/20, 12/1/20
Docket 173
Tentative Ruling for 12/22/20:
Continue to 1/5/21 at 2:00 p.m. for issuance of a Memorandum Decision on the matters taken under submission. Appearances are not required on 12/22/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Continue to 12/22/20 at 2:00 p.m. for issuance of a Memorandum Decision on the matters taken under submission. Appearances are not required on 12/1/20.
If appearances are not required at the start of this tentative ruling but you
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wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
2:00 PM
fr. 10/27/20, 12/1/20
Docket 213
Tentative Ruling for 12/22/20:
This Court is very troubled by the reported state of discovery (see, e.g., Alleged Employees' Reply, dkt. 264, filed 12/18/20). But this Court believes that the issues can be more productively addressed once this Court issues its Memorandum Decision on the related discovery disputes involving, inter alia, Debtor and its law firm, the Law Offices of Lynn Chao. Accordingly, the tentative ruling is to continue this hearing to 1/5/21 at 2:00 p.m. Appearances are not required on 12/22/20.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 12/1/20:
Appearances required.
Current issues
Contempt order (dkt. 237)
Compensatory sanctions
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This Court has reviewed the Alleged Employees' time records (dkt.
241). As of the preparation of this tentative ruling, YYF has not filed an opposition.
The tentative ruling is to award fees in the amount of $12,100 and costs in the amount of $59.85, for a total compensatory sanction against YYF in the amount of $12,159.58, payable to the Alleged Employees as compensation for the fees and costs they were forced to incur to compel compliance.
Status of compliance
The parties should be prepared to advise this Court on whether (x) coercive sanctions are appropriate (i.e., whether Young failed to produce all responsive documents by 11/20/20 at 5:00 p.m.); and (y) Young responded to the Alleged Employees' written interrogatories by the 11/25/20 at noon deadline.
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 10/27/20:
Appearances required.
Current issues
Alleged employees’ motion for issuance of order directing Young Young Food LLC ("YYF") to appear for 2004 examination and production of documents (dkt. 146, "2004 Motion"); Order granting 2004 Motion (dkt. 160, "2004 Order"); Alleged employees’ motion for issuance of OSC re contempt
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(dkt. 202, "Motion for OSC"), Order setting hearing on Motion for OSC (dkt. 215, the "OSC"), YYF’s opposition papers (dkt. 225, 226, 227), Alleged
employees’ reply papers (dkt. 228, 230)
The tentative ruling is to find YYF in contempt of court and impose sanctions in an amount to be determined at the hearing and subsequent proceedings, as set forth below.
The alleged employees have made a sufficient showing that YYF violated this Court’s 2004 Order and YYF has not responded with argument or evidence establishing that it was impossible to comply
The tentative ruling is to overrule YYF’s opposition, grant the Sanctions Motion for the reasons stated in the Alleged Employees’ reply papers (dkt.
228, 230), and find that YYF is in contempt of the 2004 Order.
In addition and alternatively, the tentative ruling is that on the merits this Court is not persuaded by YYF’s arguments that the (i) 2004 Order is overbroad and (ii) seeks discovery that could and should have been sought in a pending nonbankruptcy proceeding for the same reasons stated in this Court’s prior rulings and orders addressing those arguments. See Order (dkt. 173) at PDF p.12, para. "(b)"; Order (dkt. 117) at PDF p.5, para. "(c)"; and Order (dkt. 101) at PDF pp.6-7, para. "(3)."
Sanctions
Compensatory
The tentative ruling is to grant the Alleged Employees’ request for compensatory sanctions to reimburse them for their costs incurred preparing and filing the Sanctions Motion, responding to the OSC, and appearing at this hearing. The tentative ruling is to set a deadline of 11/5/20 for the Alleged Employees to file and serve a declaration setting forth their time records and expenses, 11/13/20 for any opposition, 11/19/20 for any reply, and a hearing on 12/1/20 at 2:00 p.m.
Coercive
The tentative ruling is to award coercive sanctions, in an escalating dollar amount to be addressed at the hearing.
Examination by written discovery
The tentative ruling is to grant the Alleged Employees’ request to obtain written discovery of YYF, in lieu of any in person examination out of concerns presented by the risks of COVID-19, by propounding 20 interrogatories on YYF, without prejudice to any follow-up discovery. The parties should be prepared to address what deadlines, if any, this Court
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should set for serving and responding to the Alleged Employees’ interrogatories (or if this Court should defer to the parties to act within the usual procedures).
Proposed order: Alleged Employees are directed to lodge a proposed order via LOU within 7 days after the hearing date, and attach a copy of this tentative ruling, thereby incorporating it as this Court's final ruling, subject to any changes ordered at the hearing. See LBR 9021-1(b)(1)(B).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Debtor(s):
GL Master Inc Represented By Thomas J Polis
Trustee(s):
Edward M Wolkowitz (TR) Pro Se
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10/23/20, 11/12/20, 12/8/20
Docket 65
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 12/22/20 at 2:00 p.m.).
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the status conference (Calendar No. 11, 12/8/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Movant(s):
United States Trustee (LA) Represented By Dare Law Alvin Mar Ron Maroko
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
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Docket 313
Tentative Ruling for 12/22/20:
Please see the tentative ruling for the status conference (Calendar No. 5, 12/22/20 at 2:00 p.m.).
Tentative Ruling for 12/8/20:
Please see the tentative ruling for the status conference (Calendar No. 11, 12/8/20 at 2:00 p.m.).
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se
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4/21/20, 5/5/20, 6/16/20, 6/30/20, 8/4/20, 9/29/20,
10/14/20, 10/22/20, 11/12/20, 12/8/20
Docket 1
Tentative Ruling for 12/22/20:
Continue as set forth below based on Debtor's status report (dkt. 359). Appearances are not required on 12/22/20.
(1) Current issues
See tentative ruling for 12/8/20.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
Plan/AmDisclosure Statement*: See above.
Continued status conference: 1/5/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer
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permitted.
Tentative Ruling for 12/8/20:
Continue as set forth below, pursuant to Debtor's status report (dkt.357). Appearances are not required on 12/8/20.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
At the continued hearing, Debtor is directed to address whether a motion for relief from the automatic stay/approval of settlement/other relief has been filed and/or granted in the Florida Receivership case. Debtor is also directed to provide an update regarding any proposed resolutions with the Guptas and others, and any proposed refinancing.
(c) MOR (10/31/20, dkt.355)
Debtor is expending substantial sums described only as "marketing." At the continued hearing, Debtor is directed to address what is the actual nature of these expenses.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued
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hearing/status conference on 12/22/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are via ZoomGov. For ZoomGov instructions for all matters on calendar, please see the tentative ruling for the first matter on today’s calendar (i.e., page 1 of the posted tentative
rulings). Unless otherwise stated, appearances via CourtCall are no longer permitted.
Tentative Ruling for 11/12/20:
Appearances required via ZoomGov.
ZoomGov Instructions Meeting ID: 161 692 1904 Password: 008720
Meeting URL: https://cacb.zoomgov.com/j/1616921904
Telephone: +1 669 254 5252 or +1 646 828 7666 or 833 568 8864 (Toll
Free)
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
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Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of the Florida Receivership and any plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: Based on Debtor's status report (dkt.351), this Court anticipates setting a continued hearing/status conference on 12/8/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined).
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[Note: The hearing on 10/6/20 was continued to 10/14/20 (dkt.339)] Tentative Ruling for 10/14/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"),
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Debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), Debtor's response (dkt. 179), Debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
There is no tentative ruling. Debtor should be prepared to provide an update on the status of plan negotiations.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/27/20 at 2:00 p.m. and/or a further evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post- confirmation status conference for 2/9/21 at 2:00 p.m. and a 1/26/21 deadline to file a post-confirmation status report.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's
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COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
Tentative Ruling for 9/29/20:
Appearances required.
Current issues
Motion of the U.S. Trustee ("UST") to dismiss (dkt. 65, "MTD"), debtor's opposition (dkt. 86), UST's reply (dkt. 168, 170), debtor's response (dkt. 179), debtor's status report (dkt. 180), stipulation and order re pre- petition bank account (dkt. 212, 221)
There is no tentative ruling. The outcome of this motion may depend on whether this Court confirms Debtor's amended plan.
Debtor's Amended plan (dkt. 313) (see also Disclosure Statement, dkt. 311), order setting confirmation hearing (dkt. 317), proof of service of solicitation package (dkt. 324), Debtor's confirmation brief (dkt. 329), ballot summary (dkt. 330), objection of Post Acute Care Partners, Inc. ("Post") (dkt. 332), objection of Shiv Raj & Saroj Gupta ("Guptas") (dkt. 333), Debtor's Reply (dkt. 335)
The tentative ruling is that (x) Debtor has adequately addressed Post's objection; (y) Debtor has adequately addressed the non-materiality of her proposed minor modifications to the Plan (i.e., re-balloting is not required); and (z) Debtor has provided sufficient arguments and evidence to overrule most of the Guptas' objections. The Guptas' objections that Debtor has not yet sufficiently addressed are explained below.
Best Interest Test (11 U.S.C. 1129(a)(7)): Debtor's calculations require an adjustment, but even with an adjustment the Guptas have not rebutted Debtor's showing that the Plan satisfies the best interest test
The tentative ruling is that Debtor's alternative liquidation analysis (dkt.335, pp.11-12) should be adjusted to account for the possibility that the secured claim asserted by Patch Of Land ("Patch" or "POL") might be reduced to some extent, based on objections to default interest and other claims by the bankruptcy estate. But the tentative ruling - based on this Court's familiarity with numerous disputes in other cases regarding default rates of interest and other charges - is that the possibility of such reduction,
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discounted to present value, is less than shortfall in funds that would be availabe in any hypothetical chapter 7 case. See Debtor's Reply (dkt.335),
p.12. See generally, e.g., East-West Bank v. Altadena Lincoln Crossing, LLC, 598 B.R. 633 (C.D. Cal. 2019)
The tentative ruling is that a precise dollar estimate is not required because the shortfall is hundreds of thousands of dollars; the discount to Patch's claim would not be greater than that. In other words, even with the adjustment to Patch's claim as described above, there would be $-0- for general unsecured creditors in a hypothetical chapter 7 case.
Alternatively, assuming for the sake of discussion that any adjustments to Debtor's liquidation analysis would be enough to provide any projected recovery for nonpriority unsecured creditors, that in itself does not establish that liquidation would be in the best interests of creditors. Rather, the issue would require further evidence because any such projected chapter 7 recovery still would have to exceed the projected recovery under Debtor's proposed Plan, and the latter requires more evidence (as noted below).
Adequate means for implementation (11 U.S.C. 1123(a)(5)) and feasibility (11 U.S.C. 1129(a)(11))
Debtor is directed to address whether she has evidence of sufficient loan commitments and/or gift commitments from family and friends to make her proposed commitments in the Plan adequate and feasible. See, e.g., Debtor's Reply (dkt.335), p.14:2-8. The parties are directed to address whether any evidentiary hearing will be necessary to address the sufficiency of such evidence, and the possible scheduling of any such evidentiary hearing and any related matters.
Deadlines/dates. This case was filed on 7/17/19.
Bar date: 12/20/19, dkt. 116 (timely served, dkt. 120)
Procedures order: dkt.9 (timely served, dkt.18)
AmPlan/AmDisclosure Statement*: See above.
Continued status conference: If there are unresolved confirmation issues, this Court anticipates setting either a continued hearing/status conference on 10/6/20 at 2:00 p.m. and/or an evidentiary hearing (at a date and time to be determined). Alternatively, if the Plan were to be confirmed at today's hearing, the tentative ruling would be to set a post-confirmation status
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conference for 1/12/21 at 2:00 p.m.
*Warning: special procedures apply (see order setting initial status conference).
If appearances are not required at the start of this tentative ruling but you wish to dispute the tentative ruling, or for further explanation of "appearances required/are not required," please see Judge Bason's Procedures (posted at www.cacb.uscourts.gov) then search for "tentative rulings." If appearances are required, and you fail to appear without adequately resolving this matter by consent, then you may waive your right to be heard on matters that are appropriate for disposition at this hearing. Pursuant to Judge Bason's COVID-19 procedures, all appearances are telephonic via CourtCall at (888) 882-6878.
[PRIOR TENTATIVE RULINGS OMITTED]
Debtor(s):
Ashley Susan Aarons Represented By James C Bastian Jr Rika Kido
Trustee(s):
John-Patrick McGinnis Fritz (TR) Pro Se